[Ws2-jurisdiction] Agenda and Master List of Proposed Issues for Upcoming Jurisdiction Subgroup Meeting at 13:00 UTC 30 August 2017

[Greg Shatan]

Thiago,

As an inital matter, please keep in mind that, as I just sent to Jorge: "This
is intended to be a census/list of the proposed issues, primarily to
confirm that we did not miss any ​proposed issues."

The notes came from staff and from me.  With regard to this major topic,
can you first confirm whether you have withdrawn the proposed issue listed
as "“In Rem” jurisdiction of US courts over ccTLDs"?  I believe that was
the case, but hope you can confirm that so that I do not have to review the
email list.

I've clarified in the Google Doc that the note "Subset of potential issue
of US Courts generally" applies only to the first bullet point (it would
apply to the first two bullet points if the "in rem" proposed issue is not
being withdrawn.)  With regard to the note that "There appear to be no
examples of this," I looked at your linked email but did not see any
examples.  I did see your assertion below and in that linked email that "US
organs can possibly interfere with ICANN's ccTLD management, regardless of
whether that has already happened."  I have added this to the note. If you
have examples where this has already happened this would be helpful to the
overall discussion.  I've also added to the note to reflect your view that
a ccNSO PDP should be accompanied by immunity.

With regard to your last point, the third bulletpoint proposed issue
already referenced enforcement by domestic agencies.  I've added more of
your language there to further clarify the point.

I think this takes your comments into account in editing the document.

Best regards,

Greg






On Wed, Aug 30, 2017 at 12:27 PM, Thiago Braz Jardim Oliveira <
thiago.jardim at itamaraty.gov.br> wrote:

> Dear Greg,
> Dear All,
>
> Without prejudice to further comments we may have regarding how the
> proposed issues have been assembled and are individually portrayed, let me
> react to the "notes" (you?) entered in respect to the "ccTLD issue".
>
> It says "Subset of potential issue of US Courts generally. There appear to
> be no examples of this. The ccNSO will have a PDP on developing a dispute
> resolution system, which could address this as these are excluded from IRP
> as requested by the ccNSO (similar to ASO)".
>
> To my understanding, the note is one-sided and expresses the views of only
> a handful of participants, as I explain below. To portray it without the
> reactions and comments that abounded in the list in response to these views
> might inappropriately influence the subsequent work of the subgroup on this
> issue.
>
> For example, one such reaction has been the acknowledgment, even on the
> part of the staunchest opponents to any change to the status quo, that US
> organs can possibly interfere with ICANN's ccTLD management, regardless of
> whether that has already happened. (I invite you to look at what I believe
> is a fair summary of the issue here: http://mm.icann.org/pipermail/
> ws2-jurisdiction/2017-August/001496.html). This is without mentioning
> other reactions and comments challenging (or at least nuancing) such
> assertion as that "there appears to be no examples of this", as is
> portrayed in the note.
>
> The same must be said in relation to the note's suggestion that a "PDP on
> developing a dispute resolution system ... could address this". In fact,
> Jordan's email, who was the person who mentioned the PDP work by the ccNSO,
> never really said that the ccNSO PDP "could address" the very issue that US
> organs can possibly interfere with ICANN's ccTLD management. On the
> contrary, several participants in the subgroup concurred that a ccNSO PDP
> would in fact "complement" our work in addressing the issue of US
> jurisdiction over ccTLDs, and this has not been challenged by anyone. (I
> invite you to look here: http://mm.icann.org/pipermail/
> ws2-jurisdiction/2017-August/001441.html ; see also the language I
> suggested accommodating the all views here: http://mm.icann.org/pipermail/
> ws2-jurisdiction/2017-August/001496.html, all of which I believe should
> not go ignored in any explanatory note to the issue that purports to be
> neutral)
>
> Finally, on the broader "ccTLD issue", contrary to the original proposal
> and subsequent exchanges in the mailing list, the issue is being portrayed
> in the table as if the only problem identified against ICANN's ccTLD
> management lay in action in "US courts", as an expression of US
> "prescriptive" and "adjudicatory" jurisdiction. Here again the "note" is
> inaccurate, as it states that the issue is a "subset of potential issue of
> US Courts generally". If the issue is a subset of anything, it is a subset
> of US jurisdiction generally, which includes US enforcement jurisdiction,
> which is territorial and exclusive in character, and may be exercised
> outside domestic courts, for example through US enforcement and regulatory
> agencies. (In addition to the links above, I also invite you to look here
> http://mm.icann.org/pipermail/ws2-jurisdiction/2017-August/001469.html)
>
> In respect to all other issues more generally, a similar reference to "US
> enforcement jurisdiction" as part of the issues identified is lacking,
> despite the exchanges in the mailing list proposing and discussing it.
>
> Thank you for taking the above into account.
>
> Best regards,
>
> Thiago
>
>
>
> -----Mensagem original-----
> De: ws2-jurisdiction-bounces at icann.org [mailto:ws2-jurisdiction-bounc
> es at icann.org] Em nome de Greg Shatan
> Enviada em: quarta-feira, 30 de agosto de 2017 01:09
> Para: ws2-jurisdiction
> Assunto: [Ws2-jurisdiction] Agenda and Master List of Proposed Issues for
> Upcoming Jurisdiction Subgroup Meeting at 13:00 UTC 30 August 2017
>
> All:
>
> I have attached the agenda and the master list of proposed issues,
> collated from all of the recent submissions on the list and in the Google
> Doc.  As a first order of business, we need to confirm that all submissions
> have been found and added to this list.  Please review this before the
> meeting if possible.  Thanks!
>
> I look forward to our upcoming meeting.
>
> Greg
>
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