CCWG-Accountability-WS2 Answer on ombuds
Form Samantha Eisner: The answer to the question of: "The ultimate responsibility for the Ombuds office must remain with the Board »² is yes. There has to be a line of accountability from the Ombuds to the Board. This is particularly important as it is the Board¹s obligation to make sure that the Bylaws requirements are met appropriately, and also consdiering the internal access that the Ombuds is granted and the focus of ³internal² evaluation. This does not mean that that others cannot give inputs to the Board on that relationship with the Ombudsman. ‹ Samantha Eisner Deputy General Counsel, ICANN 12025 Waterfront Drive, Suite 300 Los Angeles, California 90094 USA Direct Dial: +1 310 578 8631
Thanks Bernard. I understand that this answer doesn’t impact the proposal of the subgroup report regarding IOO. All the best SeB
Le 27 oct. 2017 à 08:45, Bernard Turcotte <turcotte.bernard@gmail.com> a écrit :
Form Samantha Eisner:
The answer to the question of: "The ultimate responsibility for the Ombuds office must remain with the Board »² is yes. There has to be a line of accountability from the Ombuds to the Board. This is particularly important as it is the Board¹s obligation to make sure that the Bylaws requirements are met appropriately, and also consdiering the internal access that the Ombuds is granted and the focus of ³internal² evaluation. This does not mean that that others cannot give inputs to the Board on that relationship with the Ombudsman. ‹ Samantha Eisner Deputy General Counsel, ICANN 12025 Waterfront Drive, Suite 300 Los Angeles, California 90094 USA Direct Dial: +1 310 578 8631 <tel:%2B1%20310%20578%208631>
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I understand Sam's answer, and I can see the technical legal logic that underpins it. The Board is the literal incarnation of the corporation, so it has ultimate responsbility for everything. This is so, since as far as I understand if (and I'm open to additional info here), although the Board itself owes a responsbility for doing that job qua Board properly towards the the EC, ICANN (unlike a British non-profit, or an ordinary company limited by shares) has no Members to whom the Board are responsbile. I'd like to offer a different perspective, to the below. So long as the Ombudsmans's office owes a responsbility to the Board, it can never be regarded as an impartial service. This is because the Ombudsman serves entirely at the discretion of the organisation. Even with the most independent-minded office-holder, and even in the complete absence of /actual/ bias, there is perceived bias in that the Ombudsman will want to remain employed, and can be perceived as less willing to criticise the Board. The Scottish case of Starrs and Chalmers -v- Ruxton illustrates the point well. The concept of perceived (or as we say, apparent) bias is well understood, and is recognised in the Board Conflict of Interenet Policy). (See also the Guernsey case of McGonnel -v- The United Kingdom. This apparent bias does not mean the Ombuds function loses utility, but we must be clear on that apparent lack of independence. A completely independent ombudsman would be one that had a form of tenure, in my submisson. On 10/27/2017 05:45 AM, Bernard Turcotte wrote:
Form Samantha Eisner:
The answer to the question of: "The ultimate responsibility for the Ombuds office must remain with the Board »² is yes. There has to be a line of accountability from the Ombuds to the Board. This is particularly important as it is the Board¹s obligation to make sure that the Bylaws requirements are met appropriately, and also consdiering the internal access that the Ombuds is granted and the focus of ³internal² evaluation. This does not mean that that others cannot give inputs to the Board on that relationship with the Ombudsman. ‹ Samantha Eisner Deputy General Counsel, ICANN 12025 Waterfront Drive, Suite 300 Los Angeles, California 90094 USA Direct Dial: +1 310 578 8631
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Hello Nigel and all, Thanks for your comments. If I understand well them, it is why the external reviewer and the IOO subgroup have made the following recommendation: "ICANN should establish an Ombuds Advisory Panel" To enhance (with other recommendations) IOO independence. It can be found in the report of the IOO subgroup: https://community.icann.org/download/attachments/59643286/CCWG-Accountabilit... <https://community.icann.org/download/attachments/59643286/CCWG-Accountabilit...> All the best SeB
Le 27 oct. 2017 à 09:10, Nigel Roberts <nigel@channelisles.net> a écrit :
I understand Sam's answer, and I can see the technical legal logic that underpins it. The Board is the literal incarnation of the corporation, so it has ultimate responsbility for everything.
This is so, since as far as I understand if (and I'm open to additional info here), although the Board itself owes a responsbility for doing that job qua Board properly towards the the EC, ICANN (unlike a British non-profit, or an ordinary company limited by shares) has no Members to whom the Board are responsbile.
I'd like to offer a different perspective, to the below.
So long as the Ombudsmans's office owes a responsbility to the Board, it can never be regarded as an impartial service. This is because the Ombudsman serves entirely at the discretion of the organisation.
Even with the most independent-minded office-holder, and even in the complete absence of /actual/ bias, there is perceived bias in that the Ombudsman will want to remain employed, and can be perceived as less willing to criticise the Board. The Scottish case of Starrs and Chalmers -v- Ruxton illustrates the point well.
The concept of perceived (or as we say, apparent) bias is well understood, and is recognised in the Board Conflict of Interenet Policy). (See also the Guernsey case of McGonnel -v- The United Kingdom.
This apparent bias does not mean the Ombuds function loses utility, but we must be clear on that apparent lack of independence. A completely independent ombudsman would be one that had a form of tenure, in my submisson.
On 10/27/2017 05:45 AM, Bernard Turcotte wrote:
Form Samantha Eisner: The answer to the question of: "The ultimate responsibility for the Ombuds office must remain with the Board »² is yes. There has to be a line of accountability from the Ombuds to the Board. This is particularly important as it is the Board¹s obligation to make sure that the Bylaws requirements are met appropriately, and also consdiering the internal access that the Ombuds is granted and the focus of ³internal² evaluation. This does not mean that that others cannot give inputs to the Board on that relationship with the Ombudsman. ‹ Samantha Eisner Deputy General Counsel, ICANN 12025 Waterfront Drive, Suite 300 Los Angeles, California 90094 USA Direct Dial: +1 310 578 8631 _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
I have read this, and I do not see how this propsed additional resource for the IOO, welcome though it is, in itself, can have any effect whatsoever on the point regarding the perceived bias that results from the fact that Ombudsman serves at the pleasure of the Board, and that a Board can (and does) decide to not renew such contract. Such an IOO will inevitably appear more reluctant to criticise a Board which might fire him or her. Only a form of tenure of office can address that. Whether such tenure can be achieved, through significantly longer contracts, or by the IOO reporting to a different employer, independent of the Board, is left as an exercise for the reader . . . On 10/27/2017 07:15 AM, Sebicann Bachollet wrote:
Hello Nigel and all, Thanks for your comments. If I understand well them, it is why the external reviewer and the IOO subgroup have made the following recommendation: "ICANN should establish an Ombuds Advisory Panel" To enhance (with other recommendations) IOO independence.
It can be found in the report of the IOO subgroup: https://community.icann.org/download/attachments/59643286/CCWG-Accountabilit... <https://community.icann.org/download/attachments/59643286/CCWG-Accountabilit...>
All the best SeB
Le 27 oct. 2017 à 09:10, Nigel Roberts <nigel@channelisles.net> a écrit :
I understand Sam's answer, and I can see the technical legal logic that underpins it. The Board is the literal incarnation of the corporation, so it has ultimate responsbility for everything.
This is so, since as far as I understand if (and I'm open to additional info here), although the Board itself owes a responsbility for doing that job qua Board properly towards the the EC, ICANN (unlike a British non-profit, or an ordinary company limited by shares) has no Members to whom the Board are responsbile.
I'd like to offer a different perspective, to the below.
So long as the Ombudsmans's office owes a responsbility to the Board, it can never be regarded as an impartial service. This is because the Ombudsman serves entirely at the discretion of the organisation.
Even with the most independent-minded office-holder, and even in the complete absence of /actual/ bias, there is perceived bias in that the Ombudsman will want to remain employed, and can be perceived as less willing to criticise the Board. The Scottish case of Starrs and Chalmers -v- Ruxton illustrates the point well.
The concept of perceived (or as we say, apparent) bias is well understood, and is recognised in the Board Conflict of Interenet Policy). (See also the Guernsey case of McGonnel -v- The United Kingdom.
This apparent bias does not mean the Ombuds function loses utility, but we must be clear on that apparent lack of independence. A completely independent ombudsman would be one that had a form of tenure, in my submisson.
On 10/27/2017 05:45 AM, Bernard Turcotte wrote:
Form Samantha Eisner: The answer to the question of: "The ultimate responsibility for the Ombuds office must remain with the Board »² is yes. There has to be a line of accountability from the Ombuds to the Board. This is particularly important as it is the Board¹s obligation to make sure that the Bylaws requirements are met appropriately, and also consdiering the internal access that the Ombuds is granted and the focus of ³internal² evaluation. This does not mean that that others cannot give inputs to the Board on that relationship with the Ombudsman. ‹ Samantha Eisner Deputy General Counsel, ICANN 12025 Waterfront Drive, Suite 300 Los Angeles, California 90094 USA Direct Dial: +1 310 578 8631 _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Hi all, Nigel My reading of the final report is that this is tackled by means of the recommendation about Ombudsman terms of employment: *9 The Ombuds employment contracts should be revised to strengthen independence by allowing for a: * - *5 years fixed term (including a 12 month probationary period) and permitting only one extension of up to 3 years * - *The Ombuds should only be able to be terminated with cause* (from https://community.icann.org/display/WEIA/Ombudsman?preview=/59643286/7160439... ) So I think the concern you raise has been addressed at least in part by means of this? best Jordan On 27 October 2017 at 20:43, Nigel Roberts <nigel@channelisles.net> wrote:
I have read this, and I do not see how this propsed additional resource for the IOO, welcome though it is, in itself, can have any effect whatsoever on the point regarding the perceived bias that results from the fact that Ombudsman serves at the pleasure of the Board, and that a Board can (and does) decide to not renew such contract.
Such an IOO will inevitably appear more reluctant to criticise a Board which might fire him or her.
Only a form of tenure of office can address that.
Whether such tenure can be achieved, through significantly longer contracts, or by the IOO reporting to a different employer, independent of the Board, is left as an exercise for the reader . . .
On 10/27/2017 07:15 AM, Sebicann Bachollet wrote:
Hello Nigel and all, Thanks for your comments. If I understand well them, it is why the external reviewer and the IOO subgroup have made the following recommendation: "ICANN should establish an Ombuds Advisory Panel" To enhance (with other recommendations) IOO independence.
It can be found in the report of the IOO subgroup: https://community.icann.org/download/attachments/59643286/CC WG-Accountability-WS2-Ombudsman-DrafRecommendationsV2.5.pdf? version=1&modificationDate=1508780986000&api=v2 < https://community.icann.org/download/attachments/59643286/C CWG-Accountability-WS2-Ombudsman-DrafRecommendationsV2.5.pdf?version=1& modificationDate=1508780986000&api=v2>
All the best SeB
Le 27 oct. 2017 à 09:10, Nigel Roberts <nigel@channelisles.net> a écrit :
I understand Sam's answer, and I can see the technical legal logic that underpins it. The Board is the literal incarnation of the corporation, so it has ultimate responsbility for everything.
This is so, since as far as I understand if (and I'm open to additional info here), although the Board itself owes a responsbility for doing that job qua Board properly towards the the EC, ICANN (unlike a British non-profit, or an ordinary company limited by shares) has no Members to whom the Board are responsbile.
I'd like to offer a different perspective, to the below.
So long as the Ombudsmans's office owes a responsbility to the Board, it can never be regarded as an impartial service. This is because the Ombudsman serves entirely at the discretion of the organisation.
Even with the most independent-minded office-holder, and even in the complete absence of /actual/ bias, there is perceived bias in that the Ombudsman will want to remain employed, and can be perceived as less willing to criticise the Board. The Scottish case of Starrs and Chalmers -v- Ruxton illustrates the point well.
The concept of perceived (or as we say, apparent) bias is well understood, and is recognised in the Board Conflict of Interenet Policy). (See also the Guernsey case of McGonnel -v- The United Kingdom.
This apparent bias does not mean the Ombuds function loses utility, but we must be clear on that apparent lack of independence. A completely independent ombudsman would be one that had a form of tenure, in my submisson.
On 10/27/2017 05:45 AM, Bernard Turcotte wrote:
Form Samantha Eisner: The answer to the question of: "The ultimate responsibility for the Ombuds office must remain with the Board »² is yes. There has to be a line of accountability from the Ombuds to the Board. This is particularly important as it is the Board¹s obligation to make sure that the Bylaws requirements are met appropriately, and also consdiering the internal access that the Ombuds is granted and the focus of ³internal² evaluation. This does not mean that that others cannot give inputs to the Board on that relationship with the Ombudsman. ‹ Samantha Eisner Deputy General Counsel, ICANN 12025 Waterfront Drive, Suite 300 Los Angeles, California 90094 USA Direct Dial: +1 310 578 8631 _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
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-- *Jordan Carter* Chief Executive InternetNZ Office: +64 4 495 2118 <04-495%202118> | Mobile: +64 21 442 649 <021%20442%20649> | Skype: jordancarter Email: jordan@internetnz.net.nz <https://2017.nethui.nz/>
This does improve things a bit, indeed. On 10/27/2017 08:52 AM, Jordan Carter wrote:
Hi all, Nigel
My reading of the final report is that this is tackled by means of the recommendation about Ombudsman terms of employment:
*9 The Ombuds employment contracts should be revised to strengthen independence by allowing for a: *
- *5 years fixed term (including a 12 month probationary period) and permitting only one extension of up to 3 years * - *The Ombuds should only be able to be terminated with cause*
(from https://community.icann.org/display/WEIA/Ombudsman?preview=/59643286/7160439... )
So I think the concern you raise has been addressed at least in part by means of this?
best Jordan
On 27 October 2017 at 20:43, Nigel Roberts <nigel@channelisles.net> wrote:
I have read this, and I do not see how this propsed additional resource for the IOO, welcome though it is, in itself, can have any effect whatsoever on the point regarding the perceived bias that results from the fact that Ombudsman serves at the pleasure of the Board, and that a Board can (and does) decide to not renew such contract.
Such an IOO will inevitably appear more reluctant to criticise a Board which might fire him or her.
Only a form of tenure of office can address that.
Whether such tenure can be achieved, through significantly longer contracts, or by the IOO reporting to a different employer, independent of the Board, is left as an exercise for the reader . . .
On 10/27/2017 07:15 AM, Sebicann Bachollet wrote:
Hello Nigel and all, Thanks for your comments. If I understand well them, it is why the external reviewer and the IOO subgroup have made the following recommendation: "ICANN should establish an Ombuds Advisory Panel" To enhance (with other recommendations) IOO independence.
It can be found in the report of the IOO subgroup: https://community.icann.org/download/attachments/59643286/CC WG-Accountability-WS2-Ombudsman-DrafRecommendationsV2.5.pdf? version=1&modificationDate=1508780986000&api=v2 < https://community.icann.org/download/attachments/59643286/C CWG-Accountability-WS2-Ombudsman-DrafRecommendationsV2.5.pdf?version=1& modificationDate=1508780986000&api=v2>
All the best SeB
Le 27 oct. 2017 à 09:10, Nigel Roberts <nigel@channelisles.net> a écrit :
I understand Sam's answer, and I can see the technical legal logic that underpins it. The Board is the literal incarnation of the corporation, so it has ultimate responsbility for everything.
This is so, since as far as I understand if (and I'm open to additional info here), although the Board itself owes a responsbility for doing that job qua Board properly towards the the EC, ICANN (unlike a British non-profit, or an ordinary company limited by shares) has no Members to whom the Board are responsbile.
I'd like to offer a different perspective, to the below.
So long as the Ombudsmans's office owes a responsbility to the Board, it can never be regarded as an impartial service. This is because the Ombudsman serves entirely at the discretion of the organisation.
Even with the most independent-minded office-holder, and even in the complete absence of /actual/ bias, there is perceived bias in that the Ombudsman will want to remain employed, and can be perceived as less willing to criticise the Board. The Scottish case of Starrs and Chalmers -v- Ruxton illustrates the point well.
The concept of perceived (or as we say, apparent) bias is well understood, and is recognised in the Board Conflict of Interenet Policy). (See also the Guernsey case of McGonnel -v- The United Kingdom.
This apparent bias does not mean the Ombuds function loses utility, but we must be clear on that apparent lack of independence. A completely independent ombudsman would be one that had a form of tenure, in my submisson.
On 10/27/2017 05:45 AM, Bernard Turcotte wrote:
Form Samantha Eisner: The answer to the question of: "The ultimate responsibility for the Ombuds office must remain with the Board »² is yes. There has to be a line of accountability from the Ombuds to the Board. This is particularly important as it is the Board¹s obligation to make sure that the Bylaws requirements are met appropriately, and also consdiering the internal access that the Ombuds is granted and the focus of ³internal² evaluation. This does not mean that that others cannot give inputs to the Board on that relationship with the Ombudsman. ‹ Samantha Eisner Deputy General Counsel, ICANN 12025 Waterfront Drive, Suite 300 Los Angeles, California 90094 USA Direct Dial: +1 310 578 8631 _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
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Greg It is unfortunate that among the few and very weak arguments that you put forward today in the f3f meeting about why customised immunity was never officially discussed in the sub-group you said that this was because it was offered as remedy without showing the issues that it addressed.... This, as I said during the meeting, is a shockingly false statement, and I said that I would provide evidence for it. You came back and stood by your statement. And so, the evidence as I promised is below. You set up a google doc on influence of existing jurisdiction on ICANN (link to it follows) to collect the issues that needed to be addressed, right.... One of the first entries made on it was mine, and it was extensively commented upon (most extensively by yourself).... This was close to the start of the process, near the middle of 2016. The entry on various issues I made was as follows. (cut paste form the doc begins) 1. A US court may find ICANN's actions, involving actual operation if its policies –like delegation of a gTLD, and/ or acceptance of certain terms of registry operation, to be in derogation of US law and instruct it to change its actions. 2. Emergency, including war related, powers of the US state – existing, or that may be legislated in the future, like for instance that involves country's critical infrastructure – may get invoked with respect to ICANN's policies and functions in a manner that are detrimental to some other country (or countries). 3. An US executive agency like OFAC may prohibit or limit engagement of ICANN with entities in specific countries. 4. FCC which has regulatory jurisdiction over US's communication infrastructure may in future find some ICANN functions and/ or policies to be such that it would like to apply its regulatory powers over them in what it thinks is the interest of the US public. 5. US customs, or such other enforcement agency may want to force ICANN to seize a private gTLD of a business that is located outside US which these agencies find as contravening US law, like its intellectual property laws. 6. A sector regulator in the US, say in the area of health/ pharma, transportation, hotels, etc, may find issues with the registry agreement that ICANN allows to a registry that takes up key gTLD denoting these sectors, like .pharma, .car, .hotel and lays exclusion-inclusion and other principles for the gTLD, and it may force ICANN to either rescind or change the agreement, and conditions under it. (ENDS) This entry with many comments is still visible in this doc that you developed, https://docs.google.com/document/d/1_uxN8A5J3iaofnGlr5gYoFVKudgg_DuwDgIuyICP... All these are directly issues that point towards customised immunity as the remedy -- and lest there be any doubt the connection was explicitly made in group's email discussions. Many of these issues were again underlined by a statement made, in Nov 2016 at Hyderabad ICANN, by nearly all Indian NGOs active in IG area and supported by two largest global coalitions in this area. Pl see http://itforchange.net/sites/default/files/Jurisdiction%20of%20ICANN.pdf . The statement connects these issues to customised immunity as a possible remedy, providing full details. This statement was posted on sub -group's list and discussed. Then during the public comment period (response to the questionnaire, pl see the corresponding ICANN page) many inputs once again raised important issues and linked them to customized immunity as a possible solution.... It is most shocking now at the end of the process to hear from the sub group's chair that customised immunity was always being proposed without showing the issues that it could remedy -- AND THAT WAS THE REASON IT NEVER GOT AN OFFICIAL SLOT FOR DISCUSSION. Greg, you must either disprove what I am saying here, and saying it with documented evidence, or withdraw your statement that undermines the large amount of work that so many of us did, and indeed the whole sub group's working..... We cannot let such false statements to be recorded as the historical records of this group's work, and the transcript of today's f2f meeting is supposed to go as a record annexed to the final report.. Our problem is; there was just too much prejudice, and people, including prominently the process heads/ chairs, were simply not listening to many us, they were tuned out even before the deliberative process begun!! This is not a consultative and participative process, this is something made to look like one.... Look forward to your response parminder sss
Speaking as a member, I listened but my disagreement was not motivated by prejudice. I simply found your positions lacked sufficient merit. On Fri, Oct 27, 2017, 4:24 PM parminder <parminder@itforchange.net> wrote:
Greg
It is unfortunate that among the few and very weak arguments that you put forward today in the f3f meeting about why customised immunity was never officially discussed in the sub-group you said that this was because it was offered as remedy without showing the issues that it addressed.... This, as I said during the meeting, is a shockingly false statement, and I said that I would provide evidence for it. You came back and stood by your statement. And so, the evidence as I promised is below.
You set up a google doc on influence of existing jurisdiction on ICANN (link to it follows) to collect the issues that needed to be addressed, right.... One of the first entries made on it was mine, and it was extensively commented upon (most extensively by yourself).... This was close to the start of the process, near the middle of 2016. The entry on various issues I made was as follows.
(cut paste form the doc begins)
1.
A US court may find ICANN's actions, involving actual operation if its policies –like delegation of a gTLD, and/ or acceptance of certain terms of registry operation, to be in derogation of US law and instruct it to change its actions. 2.
Emergency, including war related, powers of the US state – existing, or that may be legislated in the future, like for instance that involves country's critical infrastructure – may get invoked with respect to ICANN's policies and functions in a manner that are detrimental to some other country (or countries). 3.
An US executive agency like OFAC may prohibit or limit engagement of ICANN with entities in specific countries. 4.
FCC which has regulatory jurisdiction over US's communication infrastructure may in future find some ICANN functions and/ or policies to be such that it would like to apply its regulatory powers over them in what it thinks is the interest of the US public. 5.
US customs, or such other enforcement agency may want to force ICANN to seize a private gTLD of a business that is located outside US which these agencies find as contravening US law, like its intellectual property laws. 6.
A sector regulator in the US, say in the area of health/ pharma, transportation, hotels, etc, may find issues with the registry agreement that ICANN allows to a registry that takes up key gTLD denoting these sectors, like .pharma, .car, .hotel and lays exclusion-inclusion and other principles for the gTLD, and it may force ICANN to either rescind or change the agreement, and conditions under it.
(ENDS)
This entry with many comments is still visible in this doc that you developed, https://docs.google.com/document/d/1_uxN8A5J3iaofnGlr5gYoFVKudgg_DuwDgIuyICP...
All these are directly issues that point towards customised immunity as the remedy -- and lest there be any doubt the connection was explicitly made in group's email discussions. Many of these issues were again underlined by a statement made, in Nov 2016 at Hyderabad ICANN, by nearly all Indian NGOs active in IG area and supported by two largest global coalitions in this area. Pl see http://itforchange.net/sites/default/files/Jurisdiction%20of%20ICANN.pdf . The statement connects these issues to customised immunity as a possible remedy, providing full details. This statement was posted on sub -group's list and discussed. Then during the public comment period (response to the questionnaire, pl see the corresponding ICANN page) many inputs once again raised important issues and linked them to customized immunity as a possible solution....
It is most shocking now at the end of the process to hear from the sub group's chair that customised immunity was always being proposed without showing the issues that it could remedy -- AND THAT WAS THE REASON IT NEVER GOT AN OFFICIAL SLOT FOR DISCUSSION.
Greg, you must either disprove what I am saying here, and saying it with documented evidence, or withdraw your statement that undermines the large amount of work that so many of us did, and indeed the whole sub group's working..... We cannot let such false statements to be recorded as the historical records of this group's work, and the transcript of today's f2f meeting is supposed to go as a record annexed to the final report..
Our problem is; there was just too much prejudice, and people, including prominently the process heads/ chairs, were simply not listening to many us, they were tuned out even before the deliberative process begun!! This is not a consultative and participative process, this is something made to look like one....
Look forward to your response
parminder
sss
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As with me. The incorrect suggestion of prejudice improperly denigrates the work of the subgroup. Paul Paul Rosenzweig <mailto:paul.rosenzweig@redbranchconsulting.com> paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 <http://www.redbranchconsulting.com/> www.redbranchconsulting.com My PGP Key: <https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684> https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684 From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of John Laprise Sent: Friday, October 27, 2017 5:04 PM To: parminder <parminder@itforchange.net> Cc: ws2-jurisdiction@icann.org; accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] 2nd reading of jurisdiction sub group report Speaking as a member, I listened but my disagreement was not motivated by prejudice. I simply found your positions lacked sufficient merit. On Fri, Oct 27, 2017, 4:24 PM parminder <parminder@itforchange.net <mailto:parminder@itforchange.net> > wrote: Greg It is unfortunate that among the few and very weak arguments that you put forward today in the f3f meeting about why customised immunity was never officially discussed in the sub-group you said that this was because it was offered as remedy without showing the issues that it addressed.... This, as I said during the meeting, is a shockingly false statement, and I said that I would provide evidence for it. You came back and stood by your statement. And so, the evidence as I promised is below. You set up a google doc on influence of existing jurisdiction on ICANN (link to it follows) to collect the issues that needed to be addressed, right.... One of the first entries made on it was mine, and it was extensively commented upon (most extensively by yourself).... This was close to the start of the process, near the middle of 2016. The entry on various issues I made was as follows. (cut paste form the doc begins) 1. A US court may find ICANN's actions, involving actual operation if its policies –like delegation of a gTLD, and/ or acceptance of certain terms of registry operation, to be in derogation of US law and instruct it to change its actions. 2. Emergency, including war related, powers of the US state – existing, or that may be legislated in the future, like for instance that involves country's critical infrastructure – may get invoked with respect to ICANN's policies and functions in a manner that are detrimental to some other country (or countries). 3. An US executive agency like OFAC may prohibit or limit engagement of ICANN with entities in specific countries. 4. FCC which has regulatory jurisdiction over US's communication infrastructure may in future find some ICANN functions and/ or policies to be such that it would like to apply its regulatory powers over them in what it thinks is the interest of the US public. 5. US customs, or such other enforcement agency may want to force ICANN to seize a private gTLD of a business that is located outside US which these agencies find as contravening US law, like its intellectual property laws. 6. A sector regulator in the US, say in the area of health/ pharma, transportation, hotels, etc, may find issues with the registry agreement that ICANN allows to a registry that takes up key gTLD denoting these sectors, like .pharma, .car, .hotel and lays exclusion-inclusion and other principles for the gTLD, and it may force ICANN to either rescind or change the agreement, and conditions under it. (ENDS) This entry with many comments is still visible in this doc that you developed, https://docs.google.com/document/d/1_uxN8A5J3iaofnGlr5gYoFVKudgg_DuwDgIuyICP... All these are directly issues that point towards customised immunity as the remedy -- and lest there be any doubt the connection was explicitly made in group's email discussions. Many of these issues were again underlined by a statement made, in Nov 2016 at Hyderabad ICANN, by nearly all Indian NGOs active in IG area and supported by two largest global coalitions in this area. Pl see http://itforchange.net/sites/default/files/Jurisdiction%20of%20ICANN.pdf . The statement connects these issues to customised immunity as a possible remedy, providing full details. This statement was posted on sub -group's list and discussed. Then during the public comment period (response to the questionnaire, pl see the corresponding ICANN page) many inputs once again raised important issues and linked them to customized immunity as a possible solution.... It is most shocking now at the end of the process to hear from the sub group's chair that customised immunity was always being proposed without showing the issues that it could remedy -- AND THAT WAS THE REASON IT NEVER GOT AN OFFICIAL SLOT FOR DISCUSSION. Greg, you must either disprove what I am saying here, and saying it with documented evidence, or withdraw your statement that undermines the large amount of work that so many of us did, and indeed the whole sub group's working..... We cannot let such false statements to be recorded as the historical records of this group's work, and the transcript of today's f2f meeting is supposed to go as a record annexed to the final report.. Our problem is; there was just too much prejudice, and people, including prominently the process heads/ chairs, were simply not listening to many us, they were tuned out even before the deliberative process begun!! This is not a consultative and participative process, this is something made to look like one.... Look forward to your response parminder sss _______________________________________________ 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
On Saturday 28 October 2017 02:34 AM, John Laprise wrote:
Speaking as a member, I listened but my disagreement was not motivated by prejudice. I simply found your positions lacked sufficient merit.
John, you have a right to hold that opinion, and, who knows, you may even be right. But perhaps you'd note that my below note does not argue the merit of my position but the demerits of the sub-group chair having blatantly ignored the calls from a big number of sub group participants to formally consider the option of customised immunity for ICANN under an existing US law. After having not allowed a proper consideration of this option - which was the chief demand of its proponents -- the sub-chair gave different excuses -- the sub group report says, we could not consider it because we ran out of time, in the f2f ICANN meeting it was claimed that this option was not considered bec it was not connected to any particular issues or problems that it was meant to address.... Earlier -- just before J'berg ICANN meeting -- it had been claimed that this option was being taken off the table because it was unlikely to find traction (somehow the sub group and ccwg chair seemed to have found this out even without formal consideration of this option -- which is called prejudice). Later when many protested about this decision, it was clarified that only moving ICANN's place of incorporation was off table -- which was fine with us -- and not customised immunity. This wash an implied promise that it will be taken up for discussion, but it never was... My purpose in these interventions is to show how inappropriately the process was conducted, and thus question its illegitimacy, by ICANN's own professed standards of open participation, adequate consideration of all views, and so on..... It was clear that some people were afraid that the very justifiable option of customised immunity under an existing US Act -- under which some US non profits already function, without any apparent problem -- will be difficult to argue against rationally, which is why round-about means were employed to push it away, instead of open discussions which too could very well have resulted in rejection of this option by the group. Many people seem to be against the immunity under IOI (International Organisations Immunities) Act proposal because they thought that this will make it impossible for ICANN to continue to use California law for incorporation and for its internal governance processes, including the new community accountability mechanism. This is simply not true, because as said there are other NGOs in the US availing of immunity under US's IOI Act, but still incorporated under non profit law of a US state, and using it for internal gov processes. In any case, we repeatedly asked for legal opinion to be taken, an/*d were ready not to pursue the immunity under IOI Act route*//*if it meant ICANN cannot use California non profit law for its internal gov processes*/. Our repeated requests to get legal opinion were not even acknowledged by the sub-group chair. Is this fair? Other people seem against customised immunity because they say they indeed want continued US's parental guidance for ICANN -- it was said that ICANN could go rogue in absence of such jurisdictional oversight of US.... We said that a carve out for more important needed US laws could be made in the "customised immunity" option, but they seem wanted blanket application of all US laws over ICANN -- that obviously makes a mockery of the aspiration of ICANN to be a truly global organisation, as stated in the Net Mundial statement, undertaking a key global governance function. Now, first of all, this means that we all admit that ICANN remains under jurisdictional oversight of the US state, and thus the unilateral oversight question has only been partly addressed with NTIA's withdrawal for its direct oversight role. We still need to address US's jurisdictional oversight over the purportedly global governance institution of ICANN. Second, this is strange argument from those who are otherwise the most vocal proponents of the ICANN's so-called bottom up model, where policy and rules are made in a bottom-up manner... It is almost exactly like the fiasco in the workstream 1 when CCWG decided that ICANN should become a members-based body, with members drawn from chartering organisations, but ICANN said sorry, this wont work, because the chartering organisations are simply not representative enough of the community (that mythical, utterly elastic thing!)!!! No one really understood this -- wasnt ICANN's whole legitimacy based on community based processes of these chartering organisations?! But then it seems that the powers-that-be in the ICANN can use different arguments of bottom-up, need for jurisdictional oversight, and so on, as they wish, even when it is often done in contradictory manners. This is utterly irrational, but such things seem to pass the muster of the "ICANN community" without any murmurs, and everyone in the end simply proclaims how great ICANN and its community participation processes are..... No they are evidently not, and that is the point. Every single multistakeholder meeting that have taken place in India during the transition period concluded that US's exclusive jurisdiction over ICANN to be the top issue that needs to be addressed, and everyone I have talked to finds the customised immunity under IOI Act as a perfectly rational solution.... But in ICANN's so called highly participative processes, that option cannot even get a formal sopce for full consideration... That is the participative nature of ICANN, so, guys, let us not fool ourselves. If this proposal was formally discussed in the jurisdiction sub-group and CCWG ( no, not as a 2 hour session of presenting dissenting opinions after the act), and people had space and time to exchange views in a structured manner on why proponents find it a good option, and what were the misgivings of others, and whether they could be addressed, and so on, we would have had a really open and fair consideration of the proposal. Whether it could find consensus in the end or not, we would have built a useful record of the views around the proposal for future work on it. But that was not to be. Simply because those who were supposed to neutrally guide the process were full prejudiced against it, and considered it some kind of a demon that needed to kept away from the door as diligently as possible. In the process they simply ended up casting long shadows on the very meaningfulness of ICANN's so called bottom-up processes - -they work, yes, but within a (fairly low) glass ceiling. And when you touch that ceiling, everyone knows it quickly that it has been reached. parminder
On Fri, Oct 27, 2017, 4:24 PM parminder <parminder@itforchange.net <mailto:parminder@itforchange.net>> wrote:
Greg
It is unfortunate that among the few and very weak arguments that you put forward today in the f3f meeting about why customised immunity was never officially discussed in the sub-group you said that this was because it was offered as remedy without showing the issues that it addressed.... This, as I said during the meeting, is a shockingly false statement, and I said that I would provide evidence for it. You came back and stood by your statement. And so, the evidence as I promised is below.
You set up a google doc on influence of existing jurisdiction on ICANN (link to it follows) to collect the issues that needed to be addressed, right.... One of the first entries made on it was mine, and it was extensively commented upon (most extensively by yourself).... This was close to the start of the process, near the middle of 2016. The entry on various issues I made was as follows.
(cut paste form the doc begins)
1.
A US court may find ICANN's actions, involving actual operation if its policies –like delegation of a gTLD, and/ or acceptance of certain terms of registry operation, to be in derogation of US law and instruct it to change its actions.
2.
Emergency, including war related, powers of the US state – existing, or that may be legislated in the future, like for instance that involves country's critical infrastructure – may get invoked with respect to ICANN's policies and functions in a manner that are detrimental to some other country (or countries).
3.
An US executive agency like OFAC may prohibit or limit engagement of ICANN with entities in specific countries.
4.
FCC which has regulatory jurisdiction over US's communication infrastructure may in future find some ICANN functions and/ or policies to be such that it would like to apply its regulatory powers over them in what it thinks is the interest of the US public.
5.
US customs, or such other enforcement agency may want to force ICANN to seize a private gTLD of a business that is located outside US which these agencies find as contravening US law, like its intellectual property laws.
6.
A sector regulator in the US, say in the area of health/ pharma, transportation, hotels, etc, may find issues with the registry agreement that ICANN allows to a registry that takes up key gTLD denoting these sectors, like .pharma, .car, .hotel and lays exclusion-inclusion and other principles for the gTLD, and it may force ICANN to either rescind or change the agreement, and conditions under it.
(ENDS)
This entry with many comments is still visible in this doc that you developed, https://docs.google.com/document/d/1_uxN8A5J3iaofnGlr5gYoFVKudgg_DuwDgIuyICP...
All these are directly issues that point towards customised immunity as the remedy -- and lest there be any doubt the connection was explicitly made in group's email discussions. Many of these issues were again underlined by a statement made, in Nov 2016 at Hyderabad ICANN, by nearly all Indian NGOs active in IG area and supported by two largest global coalitions in this area. Pl see http://itforchange.net/sites/default/files/Jurisdiction%20of%20ICANN.pdf . The statement connects these issues to customised immunity as a possible remedy, providing full details. This statement was posted on sub -group's list and discussed. Then during the public comment period (response to the questionnaire, pl see the corresponding ICANN page) many inputs once again raised important issues and linked them to customized immunity as a possible solution....
It is most shocking now at the end of the process to hear from the sub group's chair that customised immunity was always being proposed without showing the issues that it could remedy -- AND THAT WAS THE REASON IT NEVER GOT AN OFFICIAL SLOT FOR DISCUSSION.
Greg, you must either disprove what I am saying here, and saying it with documented evidence, or withdraw your statement that undermines the large amount of work that so many of us did, and indeed the whole sub group's working..... We cannot let such false statements to be recorded as the historical records of this group's work, and the transcript of today's f2f meeting is supposed to go as a record annexed to the final report..
Our problem is; there was just too much prejudice, and people, including prominently the process heads/ chairs, were simply not listening to many us, they were tuned out even before the deliberative process begun!! This is not a consultative and participative process, this is something made to look like one....
Look forward to your response
parminder
sss
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Comments inline From: parminder [mailto:parminder@itforchange.net] Sent: Tuesday, October 31, 2017 9:32 AM To: John Laprise <jlaprise@gmail.com> Cc: accountability-cross-community@icann.org; ws2-jurisdiction@icann.org Subject: Re: [CCWG-ACCT] 2nd reading of jurisdiction sub group report On Saturday 28 October 2017 02:34 AM, John Laprise wrote: Speaking as a member, I listened but my disagreement was not motivated by prejudice. I simply found your positions lacked sufficient merit. John, you have a right to hold that opinion, and, who knows, you may even be right. But perhaps you'd note that my below note does not argue the merit of my position but the demerits of the sub-group chair having blatantly ignored the calls from a big number of sub group participants to formally consider the option of customised immunity for ICANN under an existing US law. After having not allowed a proper consideration of this option - which was the chief demand of its proponents -- the sub-chair gave different excuses -- the sub group report says, we could not consider it because we ran out of time, in the f2f ICANN meeting it was claimed that this option was not considered bec it was not connected to any particular issues or problems that it was meant to address.... Earlier -- just before J'berg ICANN meeting -- it had been claimed that this option was being taken off the table because it was unlikely to find traction (somehow the sub group and ccwg chair seemed to have found this out even without formal consideration of this option -- which is called prejudice). Later when many protested about this decision, it was clarified that only moving ICANN's place of incorporation was off table -- which was fine with us -- and not customised immunity. This wash an implied promise that it will be taken up for discussion, but it never was... Customized immunity is dead on arrival in the USA. The approvals it would require juxtaposed with the current political environment would require ICANN to expend inordinate resources for a low chance of success. Furthermore and more generally, it is hard to imagine any government giving ICANN the kind of customized immunities sought. Formal consideration also includes an evaluation of feasibility which in this case approaches nil. My purpose in these interventions is to show how inappropriately the process was conducted, and thus question its illegitimacy, by ICANN's own professed standards of open participation, adequate consideration of all views, and so on..... It was clear that some people were afraid that the very justifiable option of customised immunity under an existing US Act -- under which some US non profits already function, without any apparent problem -- will be difficult to argue against rationally, which is why round-about means were employed to push it away, instead of open discussions which too could very well have resulted in rejection of this option by the group. I understand your purpose but don’t find your argument for illegitimacy compelling. Some US non-profits function from that immunity but they are not ICANN. Many people seem to be against the immunity under IOI (International Organisations Immunities) Act proposal because they thought that this will make it impossible for ICANN to continue to use California law for incorporation and for its internal governance processes, including the new community accountability mechanism. This is simply not true, because as said there are other NGOs in the US availing of immunity under US's IOI Act, but still incorporated under non profit law of a US state, and using it for internal gov processes. In any case, we repeatedly asked for legal opinion to be taken, and were ready not to pursue the immunity under IOI Act route if it meant ICANN cannot use California non profit law for its internal gov processes. Our repeated requests to get legal opinion were not even acknowledged by the sub-group chair. Is this fair? This is a moot question as obtaining said immunity is simply not politically feasible at this point in time. Other people seem against customised immunity because they say they indeed want continued US's parental guidance for ICANN -- it was said that ICANN could go rogue in absence of such jurisdictional oversight of US.... We said that a carve out for more important needed US laws could be made in the "customised immunity" option, but they seem wanted blanket application of all US laws over ICANN -- that obviously makes a mockery of the aspiration of ICANN to be a truly global organisation, as stated in the Net Mundial statement, undertaking a key global governance function. It isn’t parental guidance but strong rights protections. The US is a global outlier when it comes to freedom of expression and association. Government is strictly and strongly prohibited from intervening. Other jurisdictions simply do not have this quality. Now, first of all, this means that we all admit that ICANN remains under jurisdictional oversight of the US state, and thus the unilateral oversight question has only been partly addressed with NTIA's withdrawal for its direct oversight role. We still need to address US's jurisdictional oversight over the purportedly global governance institution of ICANN. I fully agree that it is important to mitigate the impact of US law where it impairs ICANN’s mission and operation. This is a necessary evil. ICANN is a legal entity and must exist within a legal jurisdiction. There is no global jurisdiction in existence and so we must accept a national one. Second, this is strange argument from those who are otherwise the most vocal proponents of the ICANN's so-called bottom up model, where policy and rules are made in a bottom-up manner... It is almost exactly like the fiasco in the workstream 1 when CCWG decided that ICANN should become a members-based body, with members drawn from chartering organisations, but ICANN said sorry, this wont work, because the chartering organisations are simply not representative enough of the community (that mythical, utterly elastic thing!)!!! No one really understood this -- wasnt ICANN's whole legitimacy based on community based processes of these chartering organisations?! But then it seems that the powers-that-be in the ICANN can use different arguments of bottom-up, need for jurisdictional oversight, and so on, as they wish, even when it is often done in contradictory manners. This is utterly irrational, but such things seem to pass the muster of the "ICANN community" without any murmurs, and everyone in the end simply proclaims how great ICANN and its community participation processes are..... No they are evidently not, and that is the point. Every single multistakeholder meeting that have taken place in India during the transition period concluded that US's exclusive jurisdiction over ICANN to be the top issue that needs to be addressed, and everyone I have talked to finds the customised immunity under IOI Act as a perfectly rational solution.... But in ICANN's so called highly participative processes, that option cannot even get a formal sopce for full consideration... That is the participative nature of ICANN, so, guys, let us not fool ourselves. Speaking of fooling ourselves, what other jurisdiction should be considered. I’ve yet to hear a proposal or an empirical analysis regarding the relative merits of jurisdictions. All I hear is that it should be _some other_ jurisdiction… This is insufficient. If this proposal was formally discussed in the jurisdiction sub-group and CCWG ( no, not as a 2 hour session of presenting dissenting opinions after the act), and people had space and time to exchange views in a structured manner on why proponents find it a good option, and what were the misgivings of others, and whether they could be addressed, and so on, we would have had a really open and fair consideration of the proposal. Whether it could find consensus in the end or not, we would have built a useful record of the views around the proposal for future work on it. But that was not to be. Simply because those who were supposed to neutrally guide the process were full prejudiced against it, and considered it some kind of a demon that needed to kept away from the door as diligently as possible. And here I notify you that I am filing a report to Ombuds for making such an accusation against the chairs and rapporteurs. If you can’t act in accord with the expected standards of behavior, you should choose not to participate In the process they simply ended up casting long shadows on the very meaningfulness of ICANN's so called bottom-up processes - -they work, yes, but within a (fairly low) glass ceiling. And when you touch that ceiling, everyone knows it quickly that it has been reached. No. I find your speech unbecoming and insulting. If anyone has cast a shadow, it is you. John Laprise parminder On Fri, Oct 27, 2017, 4:24 PM parminder <parminder@itforchange.net <mailto:parminder@itforchange.net> > wrote: Greg It is unfortunate that among the few and very weak arguments that you put forward today in the f3f meeting about why customised immunity was never officially discussed in the sub-group you said that this was because it was offered as remedy without showing the issues that it addressed.... This, as I said during the meeting, is a shockingly false statement, and I said that I would provide evidence for it. You came back and stood by your statement. And so, the evidence as I promised is below. You set up a google doc on influence of existing jurisdiction on ICANN (link to it follows) to collect the issues that needed to be addressed, right.... One of the first entries made on it was mine, and it was extensively commented upon (most extensively by yourself).... This was close to the start of the process, near the middle of 2016. The entry on various issues I made was as follows. (cut paste form the doc begins) 1. A US court may find ICANN's actions, involving actual operation if its policies –like delegation of a gTLD, and/ or acceptance of certain terms of registry operation, to be in derogation of US law and instruct it to change its actions. 2. Emergency, including war related, powers of the US state – existing, or that may be legislated in the future, like for instance that involves country's critical infrastructure – may get invoked with respect to ICANN's policies and functions in a manner that are detrimental to some other country (or countries). 3. An US executive agency like OFAC may prohibit or limit engagement of ICANN with entities in specific countries. 4. FCC which has regulatory jurisdiction over US's communication infrastructure may in future find some ICANN functions and/ or policies to be such that it would like to apply its regulatory powers over them in what it thinks is the interest of the US public. 5. US customs, or such other enforcement agency may want to force ICANN to seize a private gTLD of a business that is located outside US which these agencies find as contravening US law, like its intellectual property laws. 6. A sector regulator in the US, say in the area of health/ pharma, transportation, hotels, etc, may find issues with the registry agreement that ICANN allows to a registry that takes up key gTLD denoting these sectors, like .pharma, .car, .hotel and lays exclusion-inclusion and other principles for the gTLD, and it may force ICANN to either rescind or change the agreement, and conditions under it. (ENDS) This entry with many comments is still visible in this doc that you developed, https://docs.google.com/document/d/1_uxN8A5J3iaofnGlr5gYoFVKudgg_DuwDgIuyICP... All these are directly issues that point towards customised immunity as the remedy -- and lest there be any doubt the connection was explicitly made in group's email discussions. Many of these issues were again underlined by a statement made, in Nov 2016 at Hyderabad ICANN, by nearly all Indian NGOs active in IG area and supported by two largest global coalitions in this area. Pl see http://itforchange.net/sites/default/files/Jurisdiction%20of%20ICANN.pdf . The statement connects these issues to customised immunity as a possible remedy, providing full details. This statement was posted on sub -group's list and discussed. Then during the public comment period (response to the questionnaire, pl see the corresponding ICANN page) many inputs once again raised important issues and linked them to customized immunity as a possible solution.... It is most shocking now at the end of the process to hear from the sub group's chair that customised immunity was always being proposed without showing the issues that it could remedy -- AND THAT WAS THE REASON IT NEVER GOT AN OFFICIAL SLOT FOR DISCUSSION. Greg, you must either disprove what I am saying here, and saying it with documented evidence, or withdraw your statement that undermines the large amount of work that so many of us did, and indeed the whole sub group's working..... We cannot let such false statements to be recorded as the historical records of this group's work, and the transcript of today's f2f meeting is supposed to go as a record annexed to the final report.. Our problem is; there was just too much prejudice, and people, including prominently the process heads/ chairs, were simply not listening to many us, they were tuned out even before the deliberative process begun!! This is not a consultative and participative process, this is something made to look like one.... Look forward to your response parminder sss _______________________________________________ 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
Thanks, John, I respond inline.. On Tuesday 31 October 2017 12:32 PM, John Laprise wrote:
Comments inline
Customized immunity is dead on arrival in the USA. The approvals it would require juxtaposed with the current political environment would require ICANN to expend inordinate resources for a low chance of success.
So it is a US problem then. it does not care about global opinion... Good reason that we ask it to either give immunity to ICANN or ICANN moves out of its jurisdiction. Further, I keep wondering whether some people's problem here is just regarding the "current political environment" or any political environment ever in the US.... If the former, as seems to be implied by you, lets not worry about the current environment. Almost 20 years after the formation of ICANN, for the first time a community process is reviewing ICANN's jurisdictional position/ issue... I dont know when it would happen again. Not any time soon for sure.... Therefore the job of this community process is to not worry about the current dispensation and just give its views about what is right for ICANN and global public interest... Let things move only when the current political environment changes. In any case these things take a long time even when a committee gives its recs. Everyone know that CCWG can only recommend and not force different actors to act as per its recs.. As for expending resources, other than the fact that ICANN seems to in a habit of expending resources unnecessarily, I dont see what is the resource requirement here. We have to form our recs, ICANN board to agree on them and/or seek legal review and advice, and act then, and that is it ...
Furthermore and more generally, it is hard to imagine any government giving ICANN the kind of customized immunities sought. Formal consideration also includes an evaluation of feasibility which in this case approaches nil.
No idea why you say so. Please explain. Most global governance organisations doing very important work, often more important than ICANN, have been given customised immunities, so why not ICANN... You make the proposition without providing any justification of it.
I understand your purpose but don’t find your argument for illegitimacy compelling. Some US non-profits function from that immunity but they are not ICANN.
Again, you make a proposition in an axiomatic fashion, without clarification of justification. So much for this ICANN exceptional-ism. When it is argued that all important global gov functions are undertaken by international organisations under international law, written by all governments together, it is claimed no, not for ICANN. ICANN is different, and it shoud be kept away from gov influences, and thus no international law for it. Well, fine..... And now you are arguing in exactly the opposite direction, with regard to US law and US gov... That ICANN is different and THEREFORE, it cannot be given immunity from US law (and thus shielded from US gov influence) !!!? I mean, is there any limit to this hypocrisy -- you must be taking all non USians to be subservient fools or something.
This is a moot question as obtaining said immunity is simply not politically feasible at this point in time.
One, this in itself is a very bad comment on US polity vis a vis global public interest -- not a positive thing about the US. Further, as argued, it does not matter if this wont agree but another political dispensation could agree to it. We need to give our recs.... This is a very weak argument.
It isn’t parental guidance but strong rights protections. The US is a global outlier when it comes to freedom of expression and association. Government is strictly and strongly prohibited from intervening. Other jurisdictions simply do not have this quality.
Some hubris this, really.... For someone to say bluntly to the global community in a global forum that his government and political system is superior to that of others! John, this kind of a thing is not done in a global forum, especially by people of more powerful countries... It is almost like sexism, a man claiming that men are inherently better then women.. This is exactly like that... But then you may be more interested in facts rather than ethical principles. Ok, lets get to that.... I would normally not comment on the nature of the political system of another country, but I cant take this kind of attitude sitting down -- which is a sweeping comment on all non US political systems. I have many things to say about freedom or expression and association within the US, but lets go past that to other issues ..... ICANN is about rights of all people in the world, not just those of the US... And I am sure you realise that US constitution gives little protections to outsiders' rights . If proof was at all needed Snowden showed it, and US admin has been clear that they provide no privacy protection to non USians (Trump I understand made a special executive order in this regard )..... You need to really read about the US record about political and civil rights of citizens of other countries (Recently, US papers on the Suharto era mass killings in Indonesia have been declassified, and in one cable a US diplomat in Jakarta is taking solace in the fact that local religiously-motivated militia is killing most communists thus solving the problem of arresting and keeping in prison so many of them ---- such instances are innumerable, and problems in such regard exist in contemporary world as well, so lets be careful about making claims on rights related records of the US which you are using to justify its continued oversight of a key global resource. I am sorry, I did not want to raise such issues but I need to respond to your hubris about the US polity.) John, do you just forget such simple things, that we are talking about rights of the people of the whole world, not just US's. Well, that is the benefit of sitting in the US (though I know a lot of USians who are very sensitive to these issues). Second, do you realise that is it not just FoE rights that apply to ICANN, but also others, especially social and economic rights. You sure know that ICANN distributes globally valuable resources, and there are issues of fairness and distributive justice involved there -- All these are matters of rights... And let me tell you, US has globally one of the worst record on economic rights -- just see its stand on access to knowledge rights (Intellectual property issues)....... And then the current battle over .Amazon too provides a good pointer....
I fully agree that it is important to mitigate the impact of US law where it impairs ICANN’s mission and operation. This is a necessary evil. ICANN is a legal entity and must exist within a legal jurisdiction. There is no global jurisdiction in existence and so we must accept a national one.
Now you have swerving dramatically from what we have been discussing here, and in the CCWG process - which is customised immunity within US law..... We are not talking here about global jurisdictions, which otherwise is a subject worth talking about. Let us not make strawman arguments here...
Speaking of fooling ourselves, what other jurisdiction should be considered. I’ve yet to hear a proposal or an empirical analysis regarding the relative merits of jurisdictions. All I hear is that it should be _/some other/_ jurisdiction… This is insufficient.
See above, we are discussing customised immunity within US law and jurisdiction... Let us not run away from that limited and clear topic... Although, independently, I am ready to discuss with you/ others relative merits of various national jurisdictions as well as international law.
And here I notify you that I am filing a report to Ombuds for making such an accusation against the chairs and rapporteurs. If you can’t act in accord with the expected standards of behavior, you should choose not to participate
You are welcome to make such a report... I would be happy to have a forum to prove how the process has been conducted in a partisan manner, which I hope any such appellate process will make room for me to argue. As for choosing not to participate, I cant abdicate bec ICANN affects the lives of people and constituencies that I work with and for -- as digitalisation of everything happens, it will affect them even more... We can hardly afford leave such governance process to a few people who undertake and accept such blatant assertion of the right of one, most powerful, country of the world to trample the democratic rights of everyone else. No, I am not leaving. (Again, as I have said often, this is nothing to do with the great nation of the USA, which I have great respect for. It has to do with those who hold and exercise illegitimate power. And in civil society, our key motto is to speak truth to power. ) parminder
In the process they simply ended up casting long shadows on the very meaningfulness of ICANN's so called bottom-up processes - -they work, yes, but within a (fairly low) glass ceiling. And when you touch that ceiling, everyone knows it quickly that it has been reached.
No. I find your speech unbecoming and insulting. If anyone has cast a shadow, it is you.
John Laprise
parminder
On Fri, Oct 27, 2017, 4:24 PM parminder <parminder@itforchange.net <mailto:parminder@itforchange.net>> wrote:
Greg
It is unfortunate that among the few and very weak arguments that you put forward today in the f3f meeting about why customised immunity was never officially discussed in the sub-group you said that this was because it was offered as remedy without showing the issues that it addressed.... This, as I said during the meeting, is a shockingly false statement, and I said that I would provide evidence for it. You came back and stood by your statement. And so, the evidence as I promised is below.
You set up a google doc on influence of existing jurisdiction on ICANN (link to it follows) to collect the issues that needed to be addressed, right.... One of the first entries made on it was mine, and it was extensively commented upon (most extensively by yourself).... This was close to the start of the process, near the middle of 2016. The entry on various issues I made was as follows.
(cut paste form the doc begins)
1. A US court may find ICANN's actions, involving actual operation if its policies –like delegation of a gTLD, and/ or acceptance of certain terms of registry operation, to be in derogation of US law and instruct it to change its actions. 2. Emergency, including war related, powers of the US state – existing, or that may be legislated in the future, like for instance that involves country's critical infrastructure – may get invoked with respect to ICANN's policies and functions in a manner that are detrimental to some other country (or countries). 3. An US executive agency like OFAC may prohibit or limit engagement of ICANN with entities in specific countries. 4. FCC which has regulatory jurisdiction over US's communication infrastructure may in future find some ICANN functions and/ or policies to be such that it would like to apply its regulatory powers over them in what it thinks is the interest of the US public. 5. US customs, or such other enforcement agency may want to force ICANN to seize a private gTLD of a business that is located outside US which these agencies find as contravening US law, like its intellectual property laws. 6. A sector regulator in the US, say in the area of health/ pharma, transportation, hotels, etc, may find issues with the registry agreement that ICANN allows to a registry that takes up key gTLD denoting these sectors, like .pharma, .car, .hotel and lays exclusion-inclusion and other principles for the gTLD, and it may force ICANN to either rescind or change the agreement, and conditions under it.
(ENDS)
This entry with many comments is still visible in this doc that you developed, https://docs.google.com/document/d/1_uxN8A5J3iaofnGlr5gYoFVKudgg_DuwDgIuyICP...
All these are directly issues that point towards customised immunity as the remedy -- and lest there be any doubt the connection was explicitly made in group's email discussions. Many of these issues were again underlined by a statement made, in Nov 2016 at Hyderabad ICANN, by nearly all Indian NGOs active in IG area and supported by two largest global coalitions in this area. Pl see http://itforchange.net/sites/default/files/Jurisdiction%20of%20ICANN.pdf . The statement connects these issues to customised immunity as a possible remedy, providing full details. This statement was posted on sub -group's list and discussed. Then during the public comment period (response to the questionnaire, pl see the corresponding ICANN page) many inputs once again raised important issues and linked them to customized immunity as a possible solution....
It is most shocking now at the end of the process to hear from the sub group's chair that customised immunity was always being proposed without showing the issues that it could remedy -- AND THAT WAS THE REASON IT NEVER GOT AN OFFICIAL SLOT FOR DISCUSSION.
Greg, you must either disprove what I am saying here, and saying it with documented evidence, or withdraw your statement that undermines the large amount of work that so many of us did, and indeed the whole sub group's working..... We cannot let such false statements to be recorded as the historical records of this group's work, and the transcript of today's f2f meeting is supposed to go as a record annexed to the final report..
Our problem is; there was just too much prejudice, and people, including prominently the process heads/ chairs, were simply not listening to many us, they were tuned out even before the deliberative process begun!! This is not a consultative and participative process, this is something made to look like one....
Look forward to your response
parminder
sss
_______________________________________________ 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
Sounds to me as if the question of immunity should have been discussed by taking up the concerns it was intended to remedy. And as if the concerns raised were treated as implicitly uninteresting or even impertinent. Concerns should have been enumerated and examined independently, treated as captured "stakeholder voice" instead of failing to address the bases of concern or this input. Maybe confirming those concerns with those who made the contribution would have been appropriate. On Fri, Oct 27, 2017 at 8:24 AM, parminder <parminder@itforchange.net> wrote:
Greg
It is unfortunate that among the few and very weak arguments that you put forward today in the f3f meeting about why customised immunity was never officially discussed in the sub-group you said that this was because it was offered as remedy without showing the issues that it addressed.... This, as I said during the meeting, is a shockingly false statement, and I said that I would provide evidence for it. You came back and stood by your statement. And so, the evidence as I promised is below.
You set up a google doc on influence of existing jurisdiction on ICANN (link to it follows) to collect the issues that needed to be addressed, right.... One of the first entries made on it was mine, and it was extensively commented upon (most extensively by yourself).... This was close to the start of the process, near the middle of 2016. The entry on various issues I made was as follows.
(cut paste form the doc begins)
A US court may find ICANN's actions, involving actual operation if its policies –like delegation of a gTLD, and/ or acceptance of certain terms of registry operation, to be in derogation of US law and instruct it to change its actions.
Emergency, including war related, powers of the US state – existing, or that may be legislated in the future, like for instance that involves country's critical infrastructure – may get invoked with respect to ICANN's policies and functions in a manner that are detrimental to some other country (or countries).
An US executive agency like OFAC may prohibit or limit engagement of ICANN with entities in specific countries.
FCC which has regulatory jurisdiction over US's communication infrastructure may in future find some ICANN functions and/ or policies to be such that it would like to apply its regulatory powers over them in what it thinks is the interest of the US public.
US customs, or such other enforcement agency may want to force ICANN to seize a private gTLD of a business that is located outside US which these agencies find as contravening US law, like its intellectual property laws.
A sector regulator in the US, say in the area of health/ pharma, transportation, hotels, etc, may find issues with the registry agreement that ICANN allows to a registry that takes up key gTLD denoting these sectors, like .pharma, .car, .hotel and lays exclusion-inclusion and other principles for the gTLD, and it may force ICANN to either rescind or change the agreement, and conditions under it.
(ENDS)
This entry with many comments is still visible in this doc that you developed, https://docs.google.com/document/d/1_uxN8A5J3iaofnGlr5gYoFVKudgg_DuwDgIuyICP...
All these are directly issues that point towards customised immunity as the remedy -- and lest there be any doubt the connection was explicitly made in group's email discussions. Many of these issues were again underlined by a statement made, in Nov 2016 at Hyderabad ICANN, by nearly all Indian NGOs active in IG area and supported by two largest global coalitions in this area. Pl see http://itforchange.net/sites/default/files/Jurisdiction%20of%20ICANN.pdf . The statement connects these issues to customised immunity as a possible remedy, providing full details. This statement was posted on sub -group's list and discussed. Then during the public comment period (response to the questionnaire, pl see the corresponding ICANN page) many inputs once again raised important issues and linked them to customized immunity as a possible solution....
It is most shocking now at the end of the process to hear from the sub group's chair that customised immunity was always being proposed without showing the issues that it could remedy -- AND THAT WAS THE REASON IT NEVER GOT AN OFFICIAL SLOT FOR DISCUSSION.
Greg, you must either disprove what I am saying here, and saying it with documented evidence, or withdraw your statement that undermines the large amount of work that so many of us did, and indeed the whole sub group's working..... We cannot let such false statements to be recorded as the historical records of this group's work, and the transcript of today's f2f meeting is supposed to go as a record annexed to the final report..
Our problem is; there was just too much prejudice, and people, including prominently the process heads/ chairs, were simply not listening to many us, they were tuned out even before the deliberative process begun!! This is not a consultative and participative process, this is something made to look like one....
Look forward to your response
parminder
sss
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Maybe confirming the concerns of those who found the recommendation of immunity (full OR partial) as challenging and striking at the heart of the multistakeholder model itself could have been done by its proponents. Whilst it seems that there is no consensus for an immunity-based model and there is consensus for the retention of the Rule of Law over ICANN, I found the lack of sympathy for our concerns to be troubling. As in, the proposal that ICANN be absolved of liabilities for its activities did not find traction, but for other reasons than the obvious one (that, if adopted, it would fundamentally and utterly undermine the basis on which the ccTLD community decided to rejoin the ICANN community after formally leaving it in 2002). TL:DR - I'm content that the subgroup is not recommending immunity but not convinced that my concerns have been fully understood during the process of getting there, either. On 10/29/2017 02:39 AM, Seth Johnson wrote:
Sounds to me as if the question of immunity should have been discussed by taking up the concerns it was intended to remedy. And as if the concerns raised were treated as implicitly uninteresting or even impertinent.
Concerns should have been enumerated and examined independently, treated as captured "stakeholder voice" instead of failing to address the bases of concern or this input. Maybe confirming those concerns with those who made the contribution would have been appropriate.
On Fri, Oct 27, 2017 at 8:24 AM, parminder <parminder@itforchange.net> wrote:
Greg
It is unfortunate that among the few and very weak arguments that you put forward today in the f3f meeting about why customised immunity was never officially discussed in the sub-group you said that this was because it was offered as remedy without showing the issues that it addressed.... This, as I said during the meeting, is a shockingly false statement, and I said that I would provide evidence for it. You came back and stood by your statement. And so, the evidence as I promised is below.
You set up a google doc on influence of existing jurisdiction on ICANN (link to it follows) to collect the issues that needed to be addressed, right.... One of the first entries made on it was mine, and it was extensively commented upon (most extensively by yourself).... This was close to the start of the process, near the middle of 2016. The entry on various issues I made was as follows.
(cut paste form the doc begins)
A US court may find ICANN's actions, involving actual operation if its policies –like delegation of a gTLD, and/ or acceptance of certain terms of registry operation, to be in derogation of US law and instruct it to change its actions.
Emergency, including war related, powers of the US state – existing, or that may be legislated in the future, like for instance that involves country's critical infrastructure – may get invoked with respect to ICANN's policies and functions in a manner that are detrimental to some other country (or countries).
An US executive agency like OFAC may prohibit or limit engagement of ICANN with entities in specific countries.
FCC which has regulatory jurisdiction over US's communication infrastructure may in future find some ICANN functions and/ or policies to be such that it would like to apply its regulatory powers over them in what it thinks is the interest of the US public.
US customs, or such other enforcement agency may want to force ICANN to seize a private gTLD of a business that is located outside US which these agencies find as contravening US law, like its intellectual property laws.
A sector regulator in the US, say in the area of health/ pharma, transportation, hotels, etc, may find issues with the registry agreement that ICANN allows to a registry that takes up key gTLD denoting these sectors, like .pharma, .car, .hotel and lays exclusion-inclusion and other principles for the gTLD, and it may force ICANN to either rescind or change the agreement, and conditions under it.
(ENDS)
This entry with many comments is still visible in this doc that you developed, https://docs.google.com/document/d/1_uxN8A5J3iaofnGlr5gYoFVKudgg_DuwDgIuyICP...
All these are directly issues that point towards customised immunity as the remedy -- and lest there be any doubt the connection was explicitly made in group's email discussions. Many of these issues were again underlined by a statement made, in Nov 2016 at Hyderabad ICANN, by nearly all Indian NGOs active in IG area and supported by two largest global coalitions in this area. Pl see http://itforchange.net/sites/default/files/Jurisdiction%20of%20ICANN.pdf . The statement connects these issues to customised immunity as a possible remedy, providing full details. This statement was posted on sub -group's list and discussed. Then during the public comment period (response to the questionnaire, pl see the corresponding ICANN page) many inputs once again raised important issues and linked them to customized immunity as a possible solution....
It is most shocking now at the end of the process to hear from the sub group's chair that customised immunity was always being proposed without showing the issues that it could remedy -- AND THAT WAS THE REASON IT NEVER GOT AN OFFICIAL SLOT FOR DISCUSSION.
Greg, you must either disprove what I am saying here, and saying it with documented evidence, or withdraw your statement that undermines the large amount of work that so many of us did, and indeed the whole sub group's working..... We cannot let such false statements to be recorded as the historical records of this group's work, and the transcript of today's f2f meeting is supposed to go as a record annexed to the final report..
Our problem is; there was just too much prejudice, and people, including prominently the process heads/ chairs, were simply not listening to many us, they were tuned out even before the deliberative process begun!! This is not a consultative and participative process, this is something made to look like one....
Look forward to your response
parminder
sss
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
I don't think you're doing this, but please don't mistake me as acting as an immunity proponent. My comment is directed toward procedure, and toward Greg, who it appears might have done well to capture concerns of all contributors and take those up for fuller discussion. Concerns can be use to point to characteristics of an output, independent of particular functional approaches/"solutions". I tend toward recognition of how frames of law apply, much like you, and the immunity proposition was a puzzle to me, though I think I can perceive it as advocating the kind of "nation independence" to which governments might be more accustomed. In one way, a proper discussion might provide some useful insight into how to conceive what I've always thought was absurd: the notion of "equal footing" among stakeholders, including governments as if they were like others. On Sat, Oct 28, 2017 at 11:06 PM, Nigel Roberts <nigel@channelisles.net> wrote:
Maybe confirming the concerns of those who found the recommendation of immunity (full OR partial) as challenging and striking at the heart of the multistakeholder model itself could have been done by its proponents.
Whilst it seems that there is no consensus for an immunity-based model and there is consensus for the retention of the Rule of Law over ICANN, I found the lack of sympathy for our concerns to be troubling.
As in, the proposal that ICANN be absolved of liabilities for its activities did not find traction, but for other reasons than the obvious one (that, if adopted, it would fundamentally and utterly undermine the basis on which the ccTLD community decided to rejoin the ICANN community after formally leaving it in 2002).
TL:DR - I'm content that the subgroup is not recommending immunity but not convinced that my concerns have been fully understood during the process of getting there, either.
On 10/29/2017 02:39 AM, Seth Johnson wrote:
Sounds to me as if the question of immunity should have been discussed by taking up the concerns it was intended to remedy. And as if the concerns raised were treated as implicitly uninteresting or even impertinent.
Concerns should have been enumerated and examined independently, treated as captured "stakeholder voice" instead of failing to address the bases of concern or this input. Maybe confirming those concerns with those who made the contribution would have been appropriate.
On Fri, Oct 27, 2017 at 8:24 AM, parminder <parminder@itforchange.net> wrote:
Greg
It is unfortunate that among the few and very weak arguments that you put forward today in the f3f meeting about why customised immunity was never officially discussed in the sub-group you said that this was because it was offered as remedy without showing the issues that it addressed.... This, as I said during the meeting, is a shockingly false statement, and I said that I would provide evidence for it. You came back and stood by your statement. And so, the evidence as I promised is below.
You set up a google doc on influence of existing jurisdiction on ICANN (link to it follows) to collect the issues that needed to be addressed, right.... One of the first entries made on it was mine, and it was extensively commented upon (most extensively by yourself).... This was close to the start of the process, near the middle of 2016. The entry on various issues I made was as follows.
(cut paste form the doc begins)
A US court may find ICANN's actions, involving actual operation if its policies –like delegation of a gTLD, and/ or acceptance of certain terms of registry operation, to be in derogation of US law and instruct it to change its actions.
Emergency, including war related, powers of the US state – existing, or that may be legislated in the future, like for instance that involves country's critical infrastructure – may get invoked with respect to ICANN's policies and functions in a manner that are detrimental to some other country (or countries).
An US executive agency like OFAC may prohibit or limit engagement of ICANN with entities in specific countries.
FCC which has regulatory jurisdiction over US's communication infrastructure may in future find some ICANN functions and/ or policies to be such that it would like to apply its regulatory powers over them in what it thinks is the interest of the US public.
US customs, or such other enforcement agency may want to force ICANN to seize a private gTLD of a business that is located outside US which these agencies find as contravening US law, like its intellectual property laws.
A sector regulator in the US, say in the area of health/ pharma, transportation, hotels, etc, may find issues with the registry agreement that ICANN allows to a registry that takes up key gTLD denoting these sectors, like .pharma, .car, .hotel and lays exclusion-inclusion and other principles for the gTLD, and it may force ICANN to either rescind or change the agreement, and conditions under it.
(ENDS)
This entry with many comments is still visible in this doc that you developed,
https://docs.google.com/document/d/1_uxN8A5J3iaofnGlr5gYoFVKudgg_DuwDgIuyICP...
All these are directly issues that point towards customised immunity as the remedy -- and lest there be any doubt the connection was explicitly made in group's email discussions. Many of these issues were again underlined by a statement made, in Nov 2016 at Hyderabad ICANN, by nearly all Indian NGOs active in IG area and supported by two largest global coalitions in this area. Pl see http://itforchange.net/sites/default/files/Jurisdiction%20of%20ICANN.pdf . The statement connects these issues to customised immunity as a possible remedy, providing full details. This statement was posted on sub -group's list and discussed. Then during the public comment period (response to the questionnaire, pl see the corresponding ICANN page) many inputs once again raised important issues and linked them to customized immunity as a possible solution....
It is most shocking now at the end of the process to hear from the sub group's chair that customised immunity was always being proposed without showing the issues that it could remedy -- AND THAT WAS THE REASON IT NEVER GOT AN OFFICIAL SLOT FOR DISCUSSION.
Greg, you must either disprove what I am saying here, and saying it with documented evidence, or withdraw your statement that undermines the large amount of work that so many of us did, and indeed the whole sub group's working..... We cannot let such false statements to be recorded as the historical records of this group's work, and the transcript of today's f2f meeting is supposed to go as a record annexed to the final report..
Our problem is; there was just too much prejudice, and people, including prominently the process heads/ chairs, were simply not listening to many us, they were tuned out even before the deliberative process begun!! This is not a consultative and participative process, this is something made to look like one....
Look forward to your response
parminder
sss
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
I don't think you're doing this, but please don't mistake me as acting as an immunity proponent. My comment is directed toward procedure, and toward Greg, who it appears might have done well to capture concerns of all contributors and take those up for fuller discussion. Concerns can be used to point to characteristics of an output, independent of particular functional approaches/"solutions". I tend toward recognition of how frames of law apply, much like you, and the immunity proposition was a puzzle to me, though I think I can perceive it as advocating the kind of "nation independence" to which governments might be more accustomed. In one way, a proper discussion might provide some useful insight into how to conceive what I've always thought was absurd: the notion of "equal footing" among stakeholders, including governments as if they were like others. On Sat, Oct 28, 2017 at 11:06 PM, Nigel Roberts <nigel@channelisles.net> wrote:
Maybe confirming the concerns of those who found the recommendation of immunity (full OR partial) as challenging and striking at the heart of the multistakeholder model itself could have been done by its proponents.
Whilst it seems that there is no consensus for an immunity-based model and there is consensus for the retention of the Rule of Law over ICANN, I found the lack of sympathy for our concerns to be troubling.
As in, the proposal that ICANN be absolved of liabilities for its activities did not find traction, but for other reasons than the obvious one (that, if adopted, it would fundamentally and utterly undermine the basis on which the ccTLD community decided to rejoin the ICANN community after formally leaving it in 2002).
TL:DR - I'm content that the subgroup is not recommending immunity but not convinced that my concerns have been fully understood during the process of getting there, either.
On 10/29/2017 02:39 AM, Seth Johnson wrote:
Sounds to me as if the question of immunity should have been discussed by taking up the concerns it was intended to remedy. And as if the concerns raised were treated as implicitly uninteresting or even impertinent.
Concerns should have been enumerated and examined independently, treated as captured "stakeholder voice" instead of failing to address the bases of concern or this input. Maybe confirming those concerns with those who made the contribution would have been appropriate.
On Fri, Oct 27, 2017 at 8:24 AM, parminder <parminder@itforchange.net> wrote:
Greg
It is unfortunate that among the few and very weak arguments that you put forward today in the f3f meeting about why customised immunity was never officially discussed in the sub-group you said that this was because it was offered as remedy without showing the issues that it addressed.... This, as I said during the meeting, is a shockingly false statement, and I said that I would provide evidence for it. You came back and stood by your statement. And so, the evidence as I promised is below.
You set up a google doc on influence of existing jurisdiction on ICANN (link to it follows) to collect the issues that needed to be addressed, right.... One of the first entries made on it was mine, and it was extensively commented upon (most extensively by yourself).... This was close to the start of the process, near the middle of 2016. The entry on various issues I made was as follows.
(cut paste form the doc begins)
A US court may find ICANN's actions, involving actual operation if its policies –like delegation of a gTLD, and/ or acceptance of certain terms of registry operation, to be in derogation of US law and instruct it to change its actions.
Emergency, including war related, powers of the US state – existing, or that may be legislated in the future, like for instance that involves country's critical infrastructure – may get invoked with respect to ICANN's policies and functions in a manner that are detrimental to some other country (or countries).
An US executive agency like OFAC may prohibit or limit engagement of ICANN with entities in specific countries.
FCC which has regulatory jurisdiction over US's communication infrastructure may in future find some ICANN functions and/ or policies to be such that it would like to apply its regulatory powers over them in what it thinks is the interest of the US public.
US customs, or such other enforcement agency may want to force ICANN to seize a private gTLD of a business that is located outside US which these agencies find as contravening US law, like its intellectual property laws.
A sector regulator in the US, say in the area of health/ pharma, transportation, hotels, etc, may find issues with the registry agreement that ICANN allows to a registry that takes up key gTLD denoting these sectors, like .pharma, .car, .hotel and lays exclusion-inclusion and other principles for the gTLD, and it may force ICANN to either rescind or change the agreement, and conditions under it.
(ENDS)
This entry with many comments is still visible in this doc that you developed,
https://docs.google.com/document/d/1_uxN8A5J3iaofnGlr5gYoFVKudgg_DuwDgIuyICP...
All these are directly issues that point towards customised immunity as the remedy -- and lest there be any doubt the connection was explicitly made in group's email discussions. Many of these issues were again underlined by a statement made, in Nov 2016 at Hyderabad ICANN, by nearly all Indian NGOs active in IG area and supported by two largest global coalitions in this area. Pl see http://itforchange.net/sites/default/files/Jurisdiction%20of%20ICANN.pdf . The statement connects these issues to customised immunity as a possible remedy, providing full details. This statement was posted on sub -group's list and discussed. Then during the public comment period (response to the questionnaire, pl see the corresponding ICANN page) many inputs once again raised important issues and linked them to customized immunity as a possible solution....
It is most shocking now at the end of the process to hear from the sub group's chair that customised immunity was always being proposed without showing the issues that it could remedy -- AND THAT WAS THE REASON IT NEVER GOT AN OFFICIAL SLOT FOR DISCUSSION.
Greg, you must either disprove what I am saying here, and saying it with documented evidence, or withdraw your statement that undermines the large amount of work that so many of us did, and indeed the whole sub group's working..... We cannot let such false statements to be recorded as the historical records of this group's work, and the transcript of today's f2f meeting is supposed to go as a record annexed to the final report..
Our problem is; there was just too much prejudice, and people, including prominently the process heads/ chairs, were simply not listening to many us, they were tuned out even before the deliberative process begun!! This is not a consultative and participative process, this is something made to look like one....
Look forward to your response
parminder
sss
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_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
participants (8)
-
Bernard Turcotte -
John Laprise -
Jordan Carter -
Nigel Roberts -
parminder -
Paul Rosenzweig -
Sebicann Bachollet -
Seth Johnson