All, I encourage you to bring these points into the draft document at https://docs.google.com/document/d/1_uxN8A5J3iaofnGlr5gYoFVKudgg_DuwDgIuyICP.... When doing so, please keep in mind the goal that this document will ultimately be part of our deliverable to the CCWG. Thanks! Greg On Sun, Nov 13, 2016 at 2:58 PM, Mueller, Milton L <milton@gatech.edu> wrote:

While I don’t support the statement as a whole, I think your dismissal is too indiscriminate.

I, too, would completely reject Parminder’s discredited argument that setting rules for a TLD named “pharmacy” will result in the global imposition of rules for the entire pharmaceutical sector (or book, or beauty parlors, etc.). This absurdly exaggerates the influence of TLD registries. Even if it were not based on a false assumption, the idea that because ICANN is incorporated in the US the rules its policy processes and registry operators adopt for these TLDs are somehow controlled by the US government is simply false.

I also think that option #1 (incorporating ICANN under international law instead of California) was soundly rejected in WS1 and in fact is not a feasible or even coherently formulated option.

Option #2, on the other hand, has some merit and certain aspects of it are worth considering. I see no fallacy in the statement, “With three different jurisdictions over these complementary functions, the possibility of any single one being … able to interfere in ICANN's global governance role will be minimized.” I think this could be considered a prudent political risk mitigation strategy. We are not going to change ICANN’s place of incorporation, and it is unlikely that we will change PTI’s place of incorporation so soon after we have stood up the new corporation. But it is not impractical to consider jurisdictional diversity the next time the RZM contract is renewed. (Note that I am characterizing an alternate jurisdiction as a ‘consideration’ and not as a ‘requirement.’ And longer term, as PTI matures they might also take into consideration the possibility of another jurisdiction. The value of this is debatable, given that PTI is a subsidiary of ICANN, but the possibility of separation was deliberately built into the design of the new arrangements. So in any separation process, jurisdictional diversity might be taken into account.

--MM

*From:* accountability-cross-community-bounces@icann.org [mailto: accountability-cross-community-bounces@icann.org] *On Behalf Of * policy@paulmcgrady.com *Sent:* Friday, November 11, 2016 9:14 AM *To:* parminder <parminder@itforchange.net>; CCWG Accountability < accountability-cross-community@icann.org> *Subject:* Re: [CCWG-ACCT] Fwd: ICANN's US jurisdiction

Thanks Parminder.

The attachment you shared seems to be a compilation of some of the really terrible ideas which have shown up on this List from time to time. Since these terrible ideas have already been addressed and addressed and addressed on this List, I'm not sure that re-addressing them again at this time would prove useful. However, I didn't want anyone to think that silence (to the latest round of trying to push for the unraveling of WS1) was somehow assent. It isn't. We just really have to get on with the real work of this group and stop constantly reopening and re-addressing all of these fringe ideas.

Best,

Paul

-------- Original Message -------- Subject: [CCWG-ACCT] Fwd: ICANN's US jurisdiction From: parminder <parminder@itforchange.net> Date: Tue, November 08, 2016 7:01 pm To: CCWG Accountability <accountability-cross-community@icann.org>

All

I thought this may be relevant to those on this list. Regard, parminder

-------- Forwarded Message --------

*Subject: *

ICANN's US jurisdiction

*Date: *

Wed, 9 Nov 2016 07:23:40 +0530

*From: *

parminder <parminder@itforchange.net> <parminder@itforchange.net>

*To: *

governance@lists.igcaucus.org <governance@lists.igcaucus.org> <governance@lists.igcaucus.org>, BestBitsList <bestbits@lists.bestbits.net> <bestbits@lists.bestbits.net>, Forum@Justnetcoalition. Org <forum@justnetcoalition.org> <forum@justnetcoalition.org>

All

As you know, the issue of jurisdiction of ICANN is under consideration at ICANN's community process (in the accountability track where there is a sub group discussing this issue). ICANN is currently meeting in Hyderabad, India, from 3rd to 9th November.

Today, on the last day of ICANN's Hyderabad meeting, the enclosed statement was issued by key Indian civil society organisations engaged with Internet governance issues, supported by two key global networks involved in this area. The statement expresses the urgent need for transiting ICANN from being under the jurisdiction of one country, presenting the rationale of why this is important to do. It also lists some possible options of doing so, towards beginning a serious action-oriented deliberation on this very important matter. Unlike what is often understood, the jurisdiction issue is not just a matter of sovereign prestige and self respect of the states but concerns vital matters impacting people's rights. This is especially so as the society gets more and more digitised in all areas.

We welcome comments and feedback.

The statement has been issued by the following Indian civil society organisations.

Centre for Internet and Society <http://cis-india.org/>, Bangalore

IT for Change <http://www.itforchange.net/>, Bangalore

Free Software Movement of India <https://en.wikipedia.org/wiki/Free_Software_Movement_of_India>, Hyderabad

Society for Knowledge Commons <http://www.knowledgecommons.in/>, New Delhi

Digital Empowerment Foundation <http://defindia.org/>, New Delhi

Delhi Science Forum <http://www.delhiscienceforum.net/>, New Delhi

*Software Freedom Law Center India*, New Delhi

Third World Network - India <https://twnetwork.org/>, New Delhi

It is supported by the following global networks:

Association For Progressive Communications <https://www.apc.org/>

Just Net Coalition <http://justnetcoalition.org/>

<http://justnetcoalition.org/>We will soon expand this effort to enlist more global support.

Best, Parminder

<http://justnetcoalition.org/>

<http://justnetcoalition.org/>

<http://justnetcoalition.org/>

<http://justnetcoalition.org/> ------------------------------

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This is in support of Avri Doria's recent intervention. Although I am in full support of the status quo, I believe that putting our heads in the sand and ignoring dissent (specially if they keep coming back), will not help to bring cloture. 1. To those who are annoyed that a subject that is "settled" somehow keeps coming back, I say, there may be a reason for the issue to come back, and we may want to look into those "reasons" to difuse them before they grow into "issues.". 2. It is no wonder that France was the first G-8 country to question ICANN's jurisdiction after the debate on DOT Vin in one of the British Isles 2012 or 2013.ICANN meetings There were reacting not only to the gTLD allocation itself, seeking a "source of law issue" but to dispute settlement mechanisms which heretofore gave great prominence to the International Chamber of Commerce's dispute resolution body. They may feel displaced by WIPO, which is a UN Organization with all the shortcomings associated with the one country, one vote modus operandum.. 3. Under common law, as well as under Customary International Law, it is easy to undertand and accept the present ICANN status. However Civil Law countries have difficulties undertanding and applying what they consider a "de facto" and not "de jure" status. 4. I am mentioning this only for the record, not because I spouse a solution like it, but for the sake of illustration. The discrepancy between Customary International Law and Written Code has been adressed through the United Nations Comission that Codifies International Law. The UN Convention on the law of the seas, for example, was written based on International Law, mandatory under "Erga Omnes". 5. Lawyers from Texas and Louisiana could be best suited to look at this problem from the clash of "Sources of Law" perspective and suggest issues for discussion and resolution in this group before they surface again under Indian, Chinese, Japanese or African legal systems. It will help all of us to be better prepared to defend our clients' interest. 6. I am even more worried, under present arrangements, to see Ms Olga Cavalli presiding over what ammounts to a GAC re-interpretation of international law on Intellectual Property regarding the relationship between Geographic signs and Trademarks (as they relate to Domain Names). The discussion does not belong to the GAC; which should be declared "Forum non conveniens". ie. Not the venue to air those issues.. 7. For that reason, I fully support Colin's effort (I call it White Paper) summarizing the role of INTA in support of our clients and the public interest offering our support to explain the role of IP under international law. A spanish translation (not official) has been sent with the original to all the Registrar's in Central America and to the SIECA Secretariat. Copy of the translation will be carried/delivered to the chair of the internet committee in Hollywood. Regards 2016-11-14 16:18 GMT-06:00 avri doria <avri@acm.org>:

Not sure where this conversation is being held.

This is a comment on the subject that I sent to the Jurisdiction list (with typos corrected)

-------- Forwarded Message -------- Subject: Re: [Ws2-jurisdiction] Multiple Layers of Jurisdiction Document Date: Sun, 13 Nov 2016 21:10:38 +0900 From: avri doria <avri@acm.org> Reply-To: avri@acm.org To: ws2-jurisdiction@icann.org

Hi,

As a part time staff member for APC, which signed the letter, I figure I should add my 2 cents.

I do not believe the object is to undo the work of WS1 and the establishment of the EC under California rules. That is not an APC goal and I do not think the letter proposes that. But I do believe we need to look at some of the other issues.

For example the one that persists to bother me and APC, is the fact that the US can make laws that prohibit ICANN/IANA from doing business with particular countries, whether it is because of boycott or other international reasons. I know we say that has never happened, though there may be some arguments about whether it did or not, but it could happen. Another issue is that given the removal of US oversight, the US government commitment made in WSIS and elsewhere to never interfere in IANA relationship with ccTLDs is meaningless. Does this commitment still hold in the current jurisdictional mix if the US government passed laws or made administrative decisions? These are the sorts of things I think we need to find a answer/solution to. So when I look at the notion of 'immunity' that is the sort I look for. Not that I believe this can be easily achieved. Personally, I do not want to see IANA (the core of the issue and the Internet) prohibited from making a change because of US law, now or ever.

I do not believe we can, or even should resolve this in WS2, but we should be aware of these problems and WS2 should recommend that further work after WS2, perhaps, be done to make sure that these and another types of errant US control are not possible. I am personally not looking for relief from the courts on contractual, accountability or EC issues as that is currently part of the accountability solution, and we have yet to see whether that works. It is going to take a few years before we have evidence on the WS1 solution being effective. But I wonder, must that always be US courts, are there other solutions for some of these court challenges, especially those more applicable to the nationals of other nations. I think there are issues we can't ignore.

So collecting the issues and figuring out what further discussion/work needs to be done on them is something that needs to be remembered and dealt with in WS2. Hence my agreement with the fact that a letter was sent indicating that there were concerns that need to be discussed and dealt with. The solution proposed in the letter where just possible avenues to explore, and even if they are impractical, we should not ignore any open issues that people might have.

avri

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