[Ws2-jurisdiction] RES: ISSUE: Positive Effect of CA Law on ICANN Operation and Accountability Mechanisms since Transition

Sun Sep 3 07:08:37 UTC 2017

All,

Let me take this opportunity to clear up some apparent misunderstandings.

First, "immunity" is a potential *remedy*, not an *issue*.  This has been
clearly stated at multiple points in the work of this Subgroup.  As such,
there is clearly no expectation that immunity (or the lack thereof) (or any
other remedy) will be discussed when stating a proposed issue.

Of course, we have also asked at this time that proposed issues be
accompanied by a proposed remedy or remedies.  However, the proposed
remedy(ies) can be whatever the proposer thinks is appropriate.  There is
absolutely no requirement that immunity of any sort be proposed as a remedy
in response to any issue.  As such it should be clear that there is no

Perhaps what Thiago is recalling is a guideline that, *if anyone does
choose to propose immunity as a remedy to any issue, that the scope of that
immunity needs to be stated as specifically as possible.*  This is related
to the decision that this group would not further explore "general"
immunity as a remedy to any issue, but only limited or qualified immunity.
This specificity would cover the activities that should be immune, the laws
and elements of "jurisdiction" that would be subject to that immunity
(ability to sue and be sued, legislative, regulatory, etc.), and the
jurisdiction(s) that would be subject to that immunity.  It would be also
be helpful to have some consideration of how this immunity would be
achieved; while not necessary, it may help the group determine whether such
a proposed remedy is practical and feasible.

With regard to Thiago's email of August 19 (which I'll note was addressed
to "Dear Greg, Dear All"), I believe that lack of response by the group
indicates that the idea expressed there gained no traction with the group.
For clarity, I'll put it below, in its entirety:

Dear Greg,
Dear All,

Mindful of the constraints of time, and with a view to advancing
towards a final report around which consensus might form, may I
request that participants who are generally opposed to granting ICANN
immunity provide examples of ICANN’s activities that they believe
should continue to be subject to the normal operation of national
laws?

I am sure we can benefit from the expertise of many participants in
the subgroup, and would recall in this respect an email sent by Mike
Rodenbaugh on 21 June 2017, who admittedly is “one who fights ICANN in
many legal matters, on behalf of clients from all over the world”.
Mike said he would like to “have a chance to refute such thinking
[that ICANN should be immune from national courts] with real-world
examples that have already happened or all still ongoing.”
http://mm.icann.org/pipermail/ws2-jurisdiction/2017-June/001149.html

Best regards,

Thiago

This request seem like an attempt to flip the "burden of persuasion"
from those who would propose a remedy to those who do not support it,
and also seems to run directly counter to the guideline that any
proposal of immunity be expressed with specificity.  Given these
problematic characteristics of the suggestion, and the lack of any
support for it on the list, it does not appear that this request
should be part of our approach.

While any participant is free to oppose a remedy in a variety of ways
(including by suggesting particular circumstances where it should not
apply), that does not appear to be an appropriate requirement for
responding to suggested remedy.  This is particularly true when it
comes to the proposal of immunity as a remedy, where our predicate for
discussion is that such a proposal needs to be limited and specific.

Of course, the Subgroup as a whole could come to a different decision.
However, I would caution us on spending much of the limited time we
have discussing process but rather stick to substance and to seeking
to persuade the Subgroup that particular proposed issue or proposed
remedy has merit.

Since Thiago's suggestion that "it will be critical that the
participants who support ICANN's subjection to US jurisdiction
identify and explain which of ICANN's activities they believe should
necessarily continue to be subject to the normal operation of national
laws and tribunals" is basically a restatement of his earlier email
(as he notes), there's no need to discuss it separately.

Finally, to be clear, when we discussed the guideline that any
proposal of immunity be expressed in a limited and specific way, there
was no implication that this was "so that ICANN be no less accountable
to other countries than it is to the United States and US
stakeholders."  (Nor was there an implication that this group has
concluded that ICANN is "less accountable to other countries than it
is to the United States and US stakeholders.") There appears to be an
attempt to bolster this through mentioning that the Charter refers to
the Netmundial definition of accountability, and then to argue that
this reference means that Netmundial was "expressly relied on in the
Charter of W2 to define ICANN's accountability goals, and from there
to argue that we need to satisfy elements of Netmundial that do not
appear in our charter.

The mention of Netmundial is actually quite narrow, and provides no
support for these leaping contentions.  Specifically, the Charter
reads:

During discussions around the transition process, the community raised the
> broader topic of the impact of the change on ICANN's accountability given
> its historical contractual relationship with the United States and NTIA.
> Accountability in this context is defined, according to the NETmundial
> multistakeholder statement, as *the existence of mechanisms for
> independent checks and balances as well as for review and redress. *

[emphasis added]

I do not see how this limited citation to the Netmundial statement, to
define Accountability as "the existence of mechanisms for independent
checks and balances as well as for review and redress," supports the idea
that the Netmundial statement defines ICANN's accountability goals.  I went
back to the Charter to see if there was another mention of Netmundial that
might provide a coherent basis for this line of thought, but this is the
only mention of Netmundial in the charter.  As such, it seems the intent is
that Netmundial is cited purely for the idea that Accountability is *the
existence of mechanisms for independent checks and balances as well as for
review and redress* and not for some broad idea that the jurisdictional
roles of all countries with regard to ICANN need to be identical.

In any event, I think our road to completion relies on concrete discussions
of proposed issues (and finding broad support for some or all of these as
actual issues for this group to consider resolving) and proposed remedies,
leading to broad support for particular issues and remedies.  I hope we can
focus on that over the next several weeks.

Best regards,

Greg

On Sat, Sep 2, 2017 at 3:21 PM, Brian Scarpelli <BScarpelli at actonline.org>
wrote:

> Thiago, I completely disagree with your depiction of my issue proposal,
> and characterizing it as an "admission" is, at best, disingenuous. You also
> appear to be implying that my proposal is outside of our remit (because,
> apparently unlike you, I did not "abide[] by the guideline (proposed by the
> rapporteur) to identify as specifically as possible what are ICANN's
> activities that should be immune from US jurisdiction") which I strongly
> disagree with. I will say that I agree with your statement on this list on
> 8/21 that "we should be in the business of recommending solutions that
> satisfy ICANN's "Accountability" goals as defined under the Charter of W2",
> and I am putting my proposal forward to do exactly that based on the
> history and realities off ICANN and accountability - not hypotheticals.
>
> Brian
>
>
> Brian Scarpelli
> Senior Policy Counsel
> 517-507-1446 | bscarpelli at actonline.org
> ACT | The App Association
>
> -----Original Message-----
> From: Paul Rosenzweig [mailto:paul.rosenzweig at redbranchconsulting.com]
> Sent: Saturday, September 2, 2017 10:52 AM
> To: 'Thiago Braz Jardim Oliveira' <thiago.jardim at itamaraty.gov.br>; Brian
> Scarpelli <BScarpelli at actonline.org>; ws2-jurisdiction at icann.org
> Subject: RE: [Ws2-jurisdiction] RES: ISSUE: Positive Effect of CA Law on
> ICANN Operation and Accountability Mechanisms since Transition
>
> No Thiago ... Brian can speak for himself, but I support the proposal
> simply as a counterweight to your incessant, obsessive, unreasoning
> attempts to expand the topic beyond what it supports.
>
> Please do not take Brian's effort as a concession -- it is simply a way of
> saying you are wrong ... yet again.  Nice try.
>
> Paul
>
> Paul Rosenzweig
> paul.rosenzweig at redbranchconsulting.com
> O: +1 (202) 547-0660
> M: +1 (202) 329-9650
> VOIP: +1 (202) 738-1739
> www.redbranchconsulting.com
> My PGP Key:
> https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684
>
> -----Original Message-----
> From: ws2-jurisdiction-bounces at icann.org
> [mailto:ws2-jurisdiction-bounces at icann.org] On Behalf Of Thiago Braz
> Jardim Oliveira
> Sent: Friday, September 1, 2017 11:15 AM
> To: 'Brian Scarpelli' <BScarpelli at actonline.org>;
> ws2-jurisdiction at icann.org
> Subject: [Ws2-jurisdiction] RES: ISSUE: Positive Effect of CA Law on ICANN
> Operation and Accountability Mechanisms since Transition
>
> Dear Brian,
> Dear All,
>
> Thank you for proposing an issue that purports to recognise the positive
> effects of ICANN's subjection to US jurisdiction.
>
> That you proposed the issue is very significant because, while we may
> disagree as to whether US jurisdiction impacts positively or negatively
> ICANN's accountability mechanisms and operations, there is here the
> admission that US jurisdiction is indeed unique in impacting ICANN's
> accountability mechanisms and operations, so much that it deserves to be
> singled out.
>
> On our part, as we have been proposing issues for the subgroup to
> consider, we have abided by the guideline (proposed by the rapporteur) to
> identify as specifically as possible what are ICANN's activities that
> should be immune from US jurisdiction, so that ICANN be no less accountable
> to other countries than it is to the United States and US stakeholders.
>
> But since in this subgroup we are subject to the same requirements, and
> also bound by a duty to make best efforts to build consensus, let me
> follow-up on my previous call on you and others, as I expressed in an
> e-mail also directed to the rapporteur, which remains unanswered to this
> day. (here is the email:
> http://mm.icann.org/pipermail/ws2-jurisdiction/2017-August/001339.html)
>
> In an effort to build consensus, it will be critical that the participants
> who support ICANN's subjection to US jurisdiction identify and explain
> which of ICANN's activities they believe should necessarily continue to be
> subject to the normal operation of national laws and tribunals.
>
> This way, we could ensure that all concerns are properly addressed, and
> also that these concerns do not prevent the subgroup from recommending
> solutions that will enhance ICANN's accountability towards all
> stakeholders, as defined in the NETmundial multistakeholder statement,
> which is expressly relied on in the Charter of W2 to define ICANN's
> accountability goals.
> Currently, ICANN's accountability mechanisms do not meet these goals, for
> ICANN is more accountable to one certain country and its citizens than it
> is to others.
>
> Best regards,
>
> Thiago
>
>
>
> -----Mensagem original-----
> De: ws2-jurisdiction-bounces at icann.org
> [mailto:ws2-jurisdiction-bounces at icann.org] Em nome de Brian Scarpelli
> Enviada em: domingo, 27 de agosto de 2017 21:24
> Para: ws2-jurisdiction at icann.org
> Assunto: [Ws2-jurisdiction] ISSUE: Positive Effect of CA Law on ICANN
> Operation and Accountability Mechanisms since Transition
>
> (with apologies for sending this to an incorrect email the first time just
> before the deadline of 12p UTC)
>
>
>
> WS2 Jurisdiction Subgroup colleagues - my issue contribution is below. I
> have also entered this into the WS2 Jurisdiction issue spreadsheet
> (MailScanner has detected definite fraud in the website at "
> docs.google.com". Do not trust this website:
> https://docs.google.com/spreadsheets/d/1zAMj3Oz8TEqbjauOyqt09Ef-
> 1ada9TrC7i60
> Mk-7al4/edit#gid=0
> <https://docs.google.com/spreadsheets/d/1zAMj3Oz8TEqbjauOyqt09Ef-
> 1ada9TrC7i6
> 0Mk-7al4/edit#gid=0> ).
>
>
>
> Best regards,
>
>
>
> Brian Scarpelli
> Senior Policy Counsel
> 517-507-1446 <tel:517-507-1446>  | bscarpelli at actonline.org <mailto:
> bscarpelli at actonline.org> ACT | The App Association
>
> ________________________________
>
>
>
> TITLE: Positive effect of California not-for-profit incorporation and
> headquarters location on ICANN accountability mechanisms and operations.
>
>
>
> ISSUE: It is within the remit of Work Stream 2's Jurisdiction Subgroup to
> build on Work Stream 1, to consider the effect of ICANN's current
> jurisdictional set-up (in particular, California not-for-profit law) on
> ICANN operation and accountability mechanisms and to find ways to enhance
> ICANN's accountability to the multistakeholder community. Work Stream 2's
> Jurisdiction Subgroup has discussed of a wide range of issues (some within
> the remit of the Subgroup, and others outside), and a number of subgroup
> members have brought forward scenarios in which jurisdiction(s) may affect
> ICANN, both positively and negatively. This discussion has been fruitful
> not only in exploring edge use cases, but more importantly in addressing
> whether and how the existing legal status of ICANN as a California
> nonprofit public benefit corporation assists ICANN in operating in an
> accountable manner.
>
>
>
> The mechanisms developed in Work Stream 1 are based on ICANN's status as
> nonprofit public benefit corporation incorporated in California and subject
> to US and California state laws. These mechanisms take advantage of
> specific features of California law, such as the Sole Designator concept.
> Work Stream
> 1 also recognized that a key existing accountability mechanism was the
> fact that ICANN is subject to U.S. federal and laws and state and federal
> court jurisdiction. Furthermore, ICANN is set up as and operates in the
> manner of a California non-profit and has done so for nearly 20 years. In
> the absence of NTIA's stewardship role over the management of the DNS,
> maintaining these new and existing accountability mechanisms, and ICANN's
> stability, is of paramount importance.
>
>
>
> Changing ICANN's jurisdiction would undermine these new and existing
> accountability mechanisms, the ability of ICANN to operate in an
> accountable manner, and ultimately ICANN's stability. Even the ongoing
> debate over ICANN's headquarters location and place of incorporation has
> the effect of bringing ICANN's accountability mechanisms into question. At
> the very least, this debate has the effect of using up significant
> multistakeholder resources better applied to refining the work of Work
> Stream and ICANN's overall accountability.
>
>
>
> PROPOSED SOLUTION: The Jurisdiction Subgroup should explicitly affirm in
> its recommendations that:
>
> *       ICANN's current jurisdiction (i.e., California as the state of
> incorporation and headquarters location) is a critical and integral part
> of ICANN's system of accountability and its operations.
> *       Subjecting ICANN to the laws of and jurisdiction of courts in the
> United States and elsewhere (including but not limited those jurisdictions
> where ICANN has operations) are fundamental and very important
> accountability mechanisms, which allow third parties to hold ICANN
> accountable and ensure that ICANN abides by the rule of law.
> *       The accountability mechanisms of Work Stream 1 use and depend on
> maintaining ICANN as a corporation headquartered and incorporated in
> California.
> *       Therefore, modifications to the core jurisdictional concepts of
> ICANN would be detrimental to ICANN's accountability. In particular, the
> CCWG's work in Work Stream requires Work Stream 2 to maintain the current
> jurisdictional concepts so that the new mechanisms can be fully implemented
> and operate unhindered for a substantial period of time. As such, Work
> Stream 2 should confirm and ratify that the current jurisdictional make-up
> of ICANN is a fundamental part of ICANN's accountability mechanisms.
>
>
>
>
>
>
>
>
>
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