Dear CCWG-colleagues, After reading some comments in this email thread, I must admit to be really disappointed. Some of our colleagues in the CCWG seem to have forgotten - perhaps on purpose - that the topic of jurisdiction was allocated to WS2 as a result of a postponement, since the majority of this group thought it was not appropriate to deal with it in the pre-transition period due to time constraints. My government was not in favor of postponing the discussion on jurisdiction, as we consider it was – and remains – a fundamental aspect of a new ICANN truly governed by the multistakeholder community without any pre-conditions, but in respect to the viewpoint of the other colleagues, we agreed to move it to WS2. Now that time has come to properly deal with this topic, it is quite frustrating to notice that some participants insist on limiting and/or procrastinating this debate, including by using the absurd argument that any discussion around jurisdiction cannot put into question any aspect already decided in WS1, which is embedded in the California law. We cannot see good faith in that kind of circular argument. In our view, the discussion around the inclusion or exclusion of Q.4 shows quite clearly that some of those who have fiercely objected to any jurisdiction debate during WS1 are maintaining their objection in WS2 as well. On that particular topic (Q.4) we concur with the view that upon deciding on institutional arrangements we should not only consider already occurred cases but also take into account logically strong possibilities. The responses to the questionnaire should thus help us to deal with all possibilities associate to jurisdiction. In case any unsubstantiated opinion will be received, it should be summarily discarded.
From the various jurisdiction calls it became quite evident that a substantial part of the subgroup - mainly non-US - has great interest in examining and debating ways through which we can make sure that any issue associated to jurisdiction be addressed in a way compatible with the company's international remit of coordinating Internet public identifiers. In that context, I would like to highlight my government´s understanding that although the proposed questionnaire under discussion may provide us with some relevant factual information, it does not in any way cover all aspects of interest. We would like to refer, for example, to the list of issues compiled by Kavouss Arasteh as per his 13 December 2016 e-mail. We would also refer to questions that have continuously been asked by Parminder, apparently without any satisfactory answer. Those issues and questions include, for example, dispute settlement related topics, which demonstrates, in our view, that jurisdiction cannot be seen purely from businesses´ viewpoint. As someone has stated, we also need to look at the relationship between ICANN and third parties and adequately consider non-contracted Parties that might be affected by ICANN´s acts and/or omissions. From the perspective of the Brazilian government, the topics raised by Kavouss, Parminder and others are issues of particular interest which, needless to say, will not be adequately addressed through the mere analysis of the answers provided to the questionnaire, whether it includes Q.4 or not. My government has expressed its interest in pursuing discussion on jurisdiction through those angles many times – both during the IANA transition process and well before that. Other governments have done the same, as well as a sound number of civil society organizations around the globe. The "NETmundial Multistakeholder Statement", while calling for the internationalization of ICANN, clearly expresses this as well. Let me emphasize, by the way, that the NETmundial Statement calls for ICANN´s internationalization and not for it to become an intergovernmental organization. Those are two different notions that should not be confounded.
If this subgroup fails to deal with the multidimensional issues associated to jurisdiction properly , it may be applauded by some segments , but it will not contribute to putting in place a framework that will ensure the shared goal of making ICANN a legitimate entity in the eyes of all stakeholders, including governments. To achieve that, no issues should be discarded as "non important" or "not yet verified". While preserving the essence of what was achieved in WS1, innovative thinking, including on the part of persons with legal expertise, will be needed. Is it worth to wipe an important debate under the carpet just to comfort one or a few stakeholder groups while discontenting others? What kind of legitimacy is such a biased and limited exercise likely to have within the international community? . It is time the subgroup - including the coChairs - make a honest assessment of the various viewpoints related to ICANN's jurisdiction and conduct the debate as openly as possible in order to address all the concerns and interests behind it. Kind regards, Sec. Pedro Ivo Ferraz da Silva Division of Information Society Ministry of Foreign Affairs - Brazil T: +55 61 2030-6609 ________________________________ De: accountability-cross-community-bounces@icann.org [accountability-cross-community-bounces@icann.org] em nome de parminder [parminder@itforchange.net] Enviado: quinta-feira, 22 de dezembro de 2016 14:01 Para: Kavouss Arasteh; Greg Shatan Cc: accountability-cross-community@icann.org Assunto: Re: [CCWG-ACCT] Jurisdiction Proposed Questions and Poll Results Dear Kavouss You are right, we should first deal with the issue of the questionnaire. I agree, as do many others, that there is no justification to remove the proposed Q 4 from the questionnaire. The question must go out along with others. A question seeking information is only a question seeking information. People may chose to not respond to it, or give different responses, likely in opposition to one another. That is all very fine, and quite expected. But such forceful arguments to not ask for certain kinds of information is very disturbing, even alarming. (I have issues with how the other questions are framed, but I am fine to let them go out because some people want them to be posed.) Ordinarily, if a good number of participants here wanted a question, that should be enough to include it. Here, a majority of those who voted on the issue of this particular question wanted the question included. That should have conclusively stopped the debate. But no, not so. There is persistent effort to censor this question. And this in a process that is advertised as open, transparent, collaborative, and what not. There is something very basically wrong here. parminder On Thursday 22 December 2016 07:20 PM, Kavouss Arasteh wrote: Dear John. Dear Parminder, It is difficult for me to conclude on any solution between the lines of your discussion. Could any of you kindly give a resume of the exchanged views. We need to look for some compromise solution knowing that some hard liners like x and y insist to impose their objections to send Q4.I continue to object to all questions until all 4 are agreed Nothing is agreed untill everything is agreed this is a Global multistakholder Group discussion and NOT North American Sub-Region multistakholder Group dominated by certain individuals Regards Kavouss 2016-12-22 13:06 GMT+01:00 parminder <parminder@itforchange.net<mailto:parminder@itforchange.net>>: On Tuesday 20 December 2016 08:37 PM, John Laprise wrote: “To turn ones face away and say, nothing can be done here, to evolve our democratic international systems, is to vote for a status quo which serves some, but not others.” Rather, it is an acknowledgement of reality. Apologies for appearing to be flippant, but isnt that what every status quo-ist says. Rule of law is neither globally strong nor evenly distributed. I can imagine a world in which the way forward you describe is plausible but, regrettably, it is not the one we live in. Other systems need strengthening and in some cases even existence before the way forward is open. It’s not a vote for the status quo but a recognition of path dependency. I am not asking for a violent deviation from the path - both options that I propose, a new international law and immunity under existing US Act carries forward the path-dependency, and completely safeguard the existing structures and processes of ICANN, the system I think you allude to as requiring strengthening. What I propose in fact further strengthens it, to a considerable extent. The ICANN system's current jurisdictional oversight by a single country is its biggest weak point in terms of international legitimacy. ( A point, unfortunately USians here seem not able to see and sympathise with.) Imagine an ICANN with immunity from US jurisdiction; how much legitimacy, and thus strength, it adds to the system. Thanks for the back rounder Parminder. It was, along with some parallel research, quite helpful. Thanks John, you are welcome. The problem remains however that there is no analogous organization to ICANN merely in terms of its contractual authority. Firstly, if we are hoping that a fully-developed, well-rounded solution, with everything fully covered by enough exact precedents, to this complex but very genuine problem, will simply one day drop in our laps, I assure you that this is not going to happen. We have to work for it, join the dots, take risks, make innovations, and so on. The point is, who is losing and gaining what from the present dispensation, and who is willing to do what is required to do. Next, I see that organisations like International Fertilizer and Development Centre, which we cited as an example of an NPO given jurisdictional immunity, also does run many projects worldwide. Any such project would require use of a legal status, entering contracts, and so on.... We just need to look into it. But if we close our eyes, and simply refuse to explore options, we are not going to get anywhere. I am not saying this example will be an exact fit for our requirement, but we need to see what is possible, and innovate and evolve over it. I’d also add that many of the benefits of the act are at the discretion of the US Secretary of State and can be revoked. Yes, which is why immunity under US Act is less sustainable option than international law based immunity. But still better than the present condition. In the recent civil society statement on jurisdiction<http://www.itforchange.net/sites/default/files/Jurisdiction%20of%20ICANN.pdf>, we also suggested a method whereby any such withdrawal of immunity can be made difficult/ ineffectual (see option 3 in the end). The proposed jurisdictional immunity would also require all governments to sign off on such status, given ICANN’s reach. I dont see why so. Only US gov needs to agree. I know that there is a significant literature on international compacts and law. Given the often decades long time frames for the passage and acceptance of such law, the Internet as we know it is unlikely to exist by the time it comes into force. These are weak excuses. It can be done in 6 months. But in any case, if it satisfies those who want to move towards international jurisdiction, what do you lose in allowing to set in motion the process, esp if you think it would take forever to do anything. Let those who want have it. In the interim, status quo would stay. To your question about why we do not discuss jurisdictional immunity under US law: it is because the domestic political reality of the situation makes such an eventuality so remote as to be hypothetical. The same domestic situation makes the continuation of ICANN under US jurisdiction even less tenable. This brings me to a very important point: the job of CCWG, working on behalf of the global community, is not to second guess what US gov will accept or not (unfortunately, that is what it has mostly done). If this was its real task, we as well may let US gov do what it may, instead of providing them the cover of legitimacy of the supposed will of the so called 'global community' which is what this process does. Our job is to recommend what we think in is best global interest, and is ordinarily plausible to do. This is what our job is, and we must just do that. Let US gov do its job - accept our recs or not. That burden is upon them - let s not take up their burden. This aspect of the work of the "community" groups involved in the transition process has always greatly bothered me. We must have clarity about - on whose behalf are we working (i think, for the global community, but you can clarify) and what our recs must be based on (I think, on our understanding of what is best for the global community, and not what we think US gov likes and would agree to, and what not, but again you can clarify) The described quest is admirable but IMO is a non-starter. Conditions do not exist presently to make it a possible. We are part of once in decades constitutional process about ICANN's structures. If it is not now, it is never. parminder Best regards, John Laprise, Ph.D. Consulting Scholar <http://www.linkedin.com/in/jplaprise/><http://www.linkedin.com/in/jplaprise/>http://www.linkedin.com/in/jplaprise/ From: parminder [<mailto:parminder@itforchange.net>mailto:parminder@itforchange.net] Sent: Tuesday, December 20, 2016 2:57 AM To: John Laprise <mailto:jlaprise@gmail.com> <jlaprise@gmail.com><mailto:jlaprise@gmail.com>; accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Jurisdiction Proposed Questions and Poll Results On Monday 19 December 2016 08:14 PM, John Laprise wrote: Possibilities of jurisdictional immunity? Could you please provide examples of organizations that enjoy such. John The most well known case of jurisdictional immunity is of course for organisations incorporated under international law. Unlike what has been argued here variously, although international law has to be made by governments through treaties etc that says nothing about the actual governance structure of the concerned organisation, ICANN in this case. International law can, to take an extreme case, hand over complete governance of a body created/ incorporated under international law to you and me... Nothing circumscribes how international law is written as long as all countries agree to it. It is entirely possible, and I think extremely plausible, that they would agree to write in such law the exact governance structure of ICANN as it is at present. Right now too, ICANN exists by and under the strength of its law of incorporation which is US law. In the scenario I present, it would just be international law instead of US law. Yes, there are matters to worked out in this regard, but if democracy and self-determination of all people, equally, is of any importance at all, we can go through the process, including doing the needed innovations as needed. The current international system was not handed over to us by God, it was evolved by people like us, who responded appropriately to newer and newer global challenges, as the one that faces us now. To turn ones face away and say, nothing can be done here, to evolve our democratic international systems, is to vote for a status quo which serves some, but not others. And these are the others that are protesting here, and seeking appropriate change. It is a political issue, lets not treat it as a technical issue, of what is argued to be difficult or too "troublesome" to pursue. Next, even without going the international law route, as has been said many times earlier here, US law allows even non profits to be given jurisdictional immunity. The concerned law is the United States International Organisations Immunities Act<https://archive.icann.org/en/psc/annex9.pdf> . And an example of a US non-profit being given jurisdiction immunity under it is International Fertilizer and Development Center. This has been discussed in a report commissioned by ICANN itself which can be found at https://archive.icann.org/en/psc/corell-24aug06.html . I have been unable to understand why can we not agree to even jurisdictional immunity under existing US law, which keeps ICANN in the US, preserves its existing structures, and does go considerable way to address the concerns about those who are concerned about application of US public law on ICANN, and what it may mean for its global governance work. The argument is advanced that this may affect the operation of the newly instituted community accountability mechanism. I dont think this is not true. This mechanism is a matter of internal ICANN governance system, which is a 'private' arrangement with choice of law available to it. It simply has to be put in ICANN bylaws that ICANN governance processes will be subject to adjudication by Californian courts as present. That should do. Of course the mentioned International Fertilizer and Development Centre also must be existing with some governance systems, that admit of external adjudication, even as it enjoys the benefit of jurisdictional immunity from US public laws. Such immunity always only pertains to the policy and such international core activities of the concerned organisation, and associated matters. It would not, for instance, extend to actual crime being committed by its personnel on its premises. All such matters of various distinctions get taken care of when we enter the actual processes of such immunities etc. Right now, the issue is only to decide to go down the route, or not. parminder Best regards, John Laprise, Ph.D. Consulting Scholar http://www.linkedin.com/in/jplaprise/ From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of parminder Sent: Monday, December 19, 2016 7:10 AM To: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Jurisdiction Proposed Questions and Poll Results On Saturday 17 December 2016 12:40 AM, Mueller, Milton L wrote: SNIP John Laprise's wording was much, much better: "What are the advantages or disadvantages, if any, relating to changing ICANN’s jurisdiction*, particularly with regard to the actual operation of ICANN’s policies and accountability mechanisms?" This formulation does not include possibilities of jurisdictional immunity. Something like "What are the advantages or disadvantages, if any, relating to changing ICANN’s jurisdiction*, or providing possible jurisdictional immunity, particularly with regard to the actual operation of ICANN’s policies and accountability mechanisms?" would be better. parminder _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community