An additional piece of this community involvement, since the AC/SO can never reach everyone, relies on the fully open comment periods that all policy goes through. Everyone is periodically requested to comment on the problems before they are worked on, and on the solutions while they are still drafts and after they are proposed to the Board. More and more these requests for comment are released in multiple scripts and languages.

On Jurisdiction:

I agree that this is a basic topic that still needs to be covered. I believe it is about making sure that any of the stakeholders has a chance to argue their case in a jurisdictionally appropriate venue. For States and IGOs, that is not generally the US court system. A solution for this does seem to be a necessary part of any accountability solution.

avri

On 05-Apr-15 01:25, parminder wrote:

Hi All

I am unable to attend the legal team meeting on the 8th, but will be grateful if the meaning of the term 'community' is sorted out, and if needed legal advice taken. It is especially important because the any final proposal should address the intention of the original NTIA declaration to transition its current functions to the 'global multistakeholder community' , which to me appears to refer to global public (although, in my view, in an inadequate manner). If ICANN's enhanced accountability to its SOs and ASs - or the 'community' engaged with names and numbers functions - is to be taken to be meeting the needs of transitioning NTIA's role to the 'global multistakeholder community' or the 'global public', the logic has to be established and explained. I am right now unable to see the logic.

Also, the jurisdiction question remains basic. If one prefers concrete examples rather than a larger political discussion: I think it would be universal knowledge that as per the applicable US sanctions, no party or company based in Crimea - and I think also Iran and Sudan - can legally apply for a gTLD from ICANN. Tomorrow, God forbid, it could be Russia,Venezuela, India, or China, and much more easily a number of smaller nations. Is such a situation tenable? I understand that a number of stress tests are going to be made on any final proposal. Has the contingency of US sanctions on different times on different countries, which if fully enforced would prohibit any US entity to do any kind of business with those countries, taken into account as one stress test? If not, please do include. It is one of the most important stress situations. It is easy to see that any final proposal that keeps ICANN within US jurisdiction will fail this very real stress test. The only solution is an international jurisdiction for ICANN - but certainly immunity from the jurisdiction of the one country which most frequently imposes sanctions and on most number of countries. This is not a tirade against the US, which has many good points to be said about it, it is simply a fact that cannot be refused to be faced.

parminder

On Friday 03 April 2015 02:37 PM, parminder wrote:

Dear All,

I request one clarification, and permission to make one comment.

I hear the term 'community' a lot in these discussions, including in the below mentioned notes/ transcript document. The term has been used to imply something that is supposed to be able to have agency and can perform clear tasks - for instance, of recalling ICANN board members, and possibly appointing members of the appeals and review teams. We also see the use of the term 'community mechanism'. At some point it appears that this community is basically the SOs and ACs (Icann's supporting organisations and advisory committees) . Obvious greater precision is required about the specific legal/ political meaning of the term 'community' as used in these documents/ discussions, especially since what is being attempted here is a new institutional mechanism of global importance. Inter alia, I will like to know if this community is the same as the 'global multistakeholder community' (itself a very uncles term) mentioned in the original NTIA statement on IANA transition. Finally, when we are looking at enhancing accountability of ICANN, is it accountability to global public, or to some specific community, and if the latter, how is it defined. One would think that is the foremost and primary question to be sorted out, and made clear, beforehand, on the basis on which an accountability mechanism can be built.

The comment that I wish to make is about the discussions on the issue of 'jurisdiction' .

At many or most points, I see 'jurisdiction' seen as merely an enabling framework, spoke of as a somewhat technical - 'neutral' and more or less given - construct, that enables Internet's technical and operational management to take place. As a body of some kind of ideal standard private law that supports and enable private contracts. Now, firstly, a 'jurisdiction' - even in its bare minimum private transactions enabling aspect - is never a neutral and static thing, and it can and does change as per political understanding and priorities of a political community. The even more important point is that any jurisdiction constitutes a public accountability mechanism, especially by means of its public law. The law incorporates the political priorities of the corresponding political community (country) and through the backing of coercive force extracts accountability from all people and institutions subject to that jurisdiction, as currently US law extracts public accountability from ICANN as a UN non-profit.

Jurisdiction is therefore directly related to public accountability, and cannot be a minor sub point in the discussion. Lines of thinking like expressed in a conclusions part below as ' topic of jurisdiction comes into scope when a requirement we have for accountability cannot be achieved within California jurisdiction ' therefore worries me a lot. Further, it is not only a question of whom a jurisdiction (here, the US) responds to, but the prior question is which political community forms and informs a jurisdiction (here the US people). I therefore cannot see how the issue of ICANN's accountability to the global public can be addressed without making it subject to international law, and making it immune to the laws of the country of its physical presence. That remains the primary question and issue with regard to ICANN's accountability.

Lastly, as a global group, presumably working on the behalf of the global public, this WG and other similar ones need to come up with a solution and institutional mechanism which best serves the interests of the global public. It need not be second guessing what would be ok with the US government and what not - that is for the US government to think. After all, this processes merely provides the recommendation for the best model, the final decision is still US government's to make. One can still stick to the five conditions set by the US government to making the oversight transition, and recommend incorporation of ICANN under international law with host country immunity. Subjecting ICANN to the jurisdiction of international law is the first and the basic question in terms of its global accountability. Rest will rather more easily fall in place once we have decided on this all-important matter.

parminder
(www.ITforChange.net)