Jorge Question 4 clearly does not have consensus support from the group. What DOES has clear overwhelming consensus is: a) Questions 1-3, and b) support for sending out the first 3 questions if 4 does not have sufficient support. Worse, Q4 basically defeats the purpose of the entire fact-finding mission. Our first 3 questions are short, clear and simple and factual in terms of what is needed to answer them The 4th question is worded in a wooly and confusion manner and is asking for opinions, not facts. You have to understand that the time and attention span of survey respondents is limited. If you throw a long, ambiguous and unclear question at them you get fewer responses. And by asking for opinions rather than facts, Q4 taints the rest of the questions and we are likely to get more opinions and fewer facts as a result. Let’s bring this to a close and send out the factual questions by themselves. If people want to initiate another process to send out a completely different kind of question, let it be done separately. --MM From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Jorge.Cancio@bakom.admin.ch Sent: Wednesday, December 14, 2016 5:06 AM To: mathieu.weill@afnic.fr; accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Jurisdiction Proposed Questions and Poll Results Dear CCWG I apologize for not being able to attend today’s call due to other prior engagements. Let me add that I’m in support of sending out all 4 questions prepared in the Jurisdiction Group. I feel that at this point of our discussions, where we are trying to gather as many facts, experiences and reasoned opinions as possible which are relevant for the influence that ICANN’s jurisdiction has on its operations and accountability mechanisms, we should not rule out questions (as question nr. 4) that have been considered important by an important part of the Subgroup (in fact, by a slight majority of it). At later stages we may determine whether ingoing responses regarding that question are factual or are mere opinions without a well-founded basis. At this moment I think that excluding relevant questions could give rise to wrong perceptions and could potentially prevent us from knowing relevant experiences/assessments covered only by question nr. 4. @staff: please note these comments in the relevant part of the call. Thanks and Best regards Jorge Von: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] Im Auftrag von Mathieu Weill Gesendet: Mittwoch, 14. Dezember 2016 08:44 An: Accountability Cross Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Betreff: [CCWG-ACCT] TR: Jurisdiction Proposed Questions and Poll Results Dear Colleagues, On behalf of the jurisdiction subgroup rapporteurs, please find attached two documents that will be discussed in the upcoming plenary. Best Mathieu De : Greg Shatan [mailto:gregshatanipc@gmail.com] Envoyé : mercredi 14 décembre 2016 07:37 À : Mathieu.Weill@afnic.fr<mailto:Mathieu.Weill@afnic.fr>; León Felipe Sánchez Ambía; Thomas Rickert; acct-staff@icann.org<mailto:acct-staff@icann.org> Objet : Jurisdiction Proposed Questions and Poll Results ​Co-Chairs and Staff: The Jurisdiction Subgroup is considering distributing a questionnaire. The first attachment shows the proposed preamble (introduction to the questions) and each of the questions proposed in the Subgroup. The second attachment shows the results of a poll taken in the Subgroup to get a sense of support in the group for each of the questions. These documents should be sent to the CCWG Plenary for discussion. Greg

The CCWG Plenary had a first reading of each of the 4 questions and the Preamble. These were discussed, and some comments were received. The results of the poll were also distributed and discussed. No decisions were made. Presumably, there will be a second reading at the next CCWG Plenary meeting on January 11. Greg On Thu, Dec 15, 2016 at 5:22 PM, <Jorge.Cancio@bakom.admin.ch> wrote:

Dear Milton

I feel the supposed dangers of the fourth question are being exaggerated – we are mature enough to distinguish well-reasoned opinions from mere hypothesis. And respondents are also well-prepared to deal with 4 instead of 3 questions – I do not see any serious danger of overburdening them because of that. We could make clear that respondents only have to answer what they deem relevant.

Without wanting to repeat myself: to exclude a question that was supported by a slight majority in the poll indicates some fear on what could back in terms of substance – not because it would be useless, but because some in the group would not like the arguments being made.

I’m of the opinion that if we have good arguments and continue with a rational conversation there is no reason for such a fear whatsoever.

BTW: did the CCWG Plenary decide on this? Or give any direction? I would not like to spend time on a topic already decided…

Kind regards

Jorge

*Von:* Mueller, Milton L [mailto:milton@gatech.edu] *Gesendet:* Donnerstag, 15. Dezember 2016 23:13 *An:* Cancio Jorge BAKOM <Jorge.Cancio@bakom.admin.ch>; mathieu.weill@afnic.fr; accountability-cross-community@icann.org *Betreff:* RE: Jurisdiction Proposed Questions and Poll Results

Jorge

Question 4 clearly does not have consensus support from the group. What DOES has clear overwhelming consensus is: a) Questions 1-3, and b) support for sending out the first 3 questions if 4 does not have sufficient support.

Worse, Q4 basically defeats the purpose of the entire fact-finding mission.

Our first 3 questions are short, clear and simple and factual in terms of what is needed to answer them

The 4th question is worded in a wooly and confusion manner and is asking for opinions, not facts.

You have to understand that the time and attention span of survey respondents is limited. If you throw a long, ambiguous and unclear question at them you get fewer responses. And by asking for opinions rather than facts, Q4 taints the rest of the questions and we are likely to get more opinions and fewer facts as a result.

Let’s bring this to a close and send out the factual questions by themselves. If people want to initiate another process to send out a completely different kind of question, let it be done separately.

--MM

*From:* accountability-cross-community-bounces@icann.org [ mailto:accountability-cross-community-bounces@icann.org <accountability-cross-community-bounces@icann.org>] *On Behalf Of * Jorge.Cancio@bakom.admin.ch *Sent:* Wednesday, December 14, 2016 5:06 AM *To:* mathieu.weill@afnic.fr; accountability-cross-community@icann.org *Subject:* Re: [CCWG-ACCT] Jurisdiction Proposed Questions and Poll Results

Dear CCWG

I apologize for not being able to attend today’s call due to other prior engagements.

Let me add that I’m in support of sending out all 4 questions prepared in the Jurisdiction Group.

I feel that at this point of our discussions, where we are trying to gather as many facts, experiences and reasoned opinions as possible which are relevant for the influence that ICANN’s jurisdiction has on its operations and accountability mechanisms, we should not rule out questions (as question nr. 4) that have been considered important by an important part of the Subgroup (in fact, by a slight majority of it).

At later stages we may determine whether ingoing responses regarding that question are factual or are mere opinions without a well-founded basis.

At this moment I think that excluding relevant questions could give rise to wrong perceptions and could potentially prevent us from knowing relevant experiences/assessments covered only by question nr. 4.

@staff: please note these comments in the relevant part of the call.

Thanks and

Best regards

Jorge

*Von:* accountability-cross-community-bounces@icann.org [ mailto:accountability-cross-community-bounces@icann.org <accountability-cross-community-bounces@icann.org>] *Im Auftrag von *Mathieu Weill *Gesendet:* Mittwoch, 14. Dezember 2016 08:44 *An:* Accountability Cross Community <accountability-cross- community@icann.org> *Betreff:* [CCWG-ACCT] TR: Jurisdiction Proposed Questions and Poll Results

Dear Colleagues,

On behalf of the jurisdiction subgroup rapporteurs, please find attached two documents that will be discussed in the upcoming plenary.

Best

Mathieu

*De :* Greg Shatan [mailto:gregshatanipc@gmail.com <gregshatanipc@gmail.com>] *Envoyé :* mercredi 14 décembre 2016 07:37 *À :* Mathieu.Weill@afnic.fr; León Felipe Sánchez Ambía; Thomas Rickert; acct-staff@icann.org *Objet :* Jurisdiction Proposed Questions and Poll Results

​Co-Chairs and Staff:

The Jurisdiction Subgroup is considering distributing a questionnaire. The first attachment shows the proposed preamble (introduction to the questions) and each of the questions proposed in the Subgroup.

The second attachment shows the results of a poll taken in the Subgroup to get a sense of support in the group for each of the questions.

These documents should be sent to the CCWG Plenary for discussion.

Greg

_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community

Greg There was no agreement to consider the review as First Reading It was sent back to reconsider the matter and resubmit it for first Reading We have to have a fresh look No questions or all questions This is the issue on the table Once we agree on that then there nay be some editing in Q 1 as I indicated " deletion of business and privacy" Pls kindly listen to us also and NOT to yourself Regards Kavouss Sent from my iPhone

On 16 Dec 2016, at 00:05, Greg Shatan <gregshatanipc@gmail.com> wrote:

The CCWG Plenary had a first reading of each of the 4 questions and the Preamble. These were discussed, and some comments were received. The results of the poll were also distributed and discussed. No decisions were made.

Presumably, there will be a second reading at the next CCWG Plenary meeting on January 11.

Greg

...

On Thu, Dec 15, 2016 at 5:22 PM, <Jorge.Cancio@bakom.admin.ch> wrote: Dear Milton

I feel the supposed dangers of the fourth question are being exaggerated – we are mature enough to distinguish well-reasoned opinions from mere hypothesis. And respondents are also well-prepared to deal with 4 instead of 3 questions – I do not see any serious danger of overburdening them because of that. We could make clear that respondents only have to answer what they deem relevant.

Without wanting to repeat myself: to exclude a question that was supported by a slight majority in the poll indicates some fear on what could back in terms of substance – not because it would be useless, but because some in the group would not like the arguments being made.

I’m of the opinion that if we have good arguments and continue with a rational conversation there is no reason for such a fear whatsoever.

BTW: did the CCWG Plenary decide on this? Or give any direction? I would not like to spend time on a topic already decided…

Kind regards

Jorge

Von: Mueller, Milton L [mailto:milton@gatech.edu] Gesendet: Donnerstag, 15. Dezember 2016 23:13 An: Cancio Jorge BAKOM <Jorge.Cancio@bakom.admin.ch>; mathieu.weill@afnic.fr; accountability-cross-community@icann.org Betreff: RE: Jurisdiction Proposed Questions and Poll Results

Jorge

Question 4 clearly does not have consensus support from the group. What DOES has clear overwhelming consensus is: a) Questions 1-3, and b) support for sending out the first 3 questions if 4 does not have sufficient support.

Worse, Q4 basically defeats the purpose of the entire fact-finding mission.

Our first 3 questions are short, clear and simple and factual in terms of what is needed to answer them

The 4th question is worded in a wooly and confusion manner and is asking for opinions, not facts.

You have to understand that the time and attention span of survey respondents is limited. If you throw a long, ambiguous and unclear question at them you get fewer responses. And by asking for opinions rather than facts, Q4 taints the rest of the questions and we are likely to get more opinions and fewer facts as a result.

Let’s bring this to a close and send out the factual questions by themselves. If people want to initiate another process to send out a completely different kind of question, let it be done separately.

--MM

From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Jorge.Cancio@bakom.admin.ch Sent: Wednesday, December 14, 2016 5:06 AM To: mathieu.weill@afnic.fr; accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Jurisdiction Proposed Questions and Poll Results

Dear CCWG

I apologize for not being able to attend today’s call due to other prior engagements.

Let me add that I’m in support of sending out all 4 questions prepared in the Jurisdiction Group.

I feel that at this point of our discussions, where we are trying to gather as many facts, experiences and reasoned opinions as possible which are relevant for the influence that ICANN’s jurisdiction has on its operations and accountability mechanisms, we should not rule out questions (as question nr. 4) that have been considered important by an important part of the Subgroup (in fact, by a slight majority of it).

At later stages we may determine whether ingoing responses regarding that question are factual or are mere opinions without a well-founded basis.

At this moment I think that excluding relevant questions could give rise to wrong perceptions and could potentially prevent us from knowing relevant experiences/assessments covered only by question nr. 4.

@staff: please note these comments in the relevant part of the call.

Thanks and

Best regards

Jorge

Von: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] Im Auftrag von Mathieu Weill Gesendet: Mittwoch, 14. Dezember 2016 08:44 An: Accountability Cross Community <accountability-cross-community@icann.org> Betreff: [CCWG-ACCT] TR: Jurisdiction Proposed Questions and Poll Results

Dear Colleagues,

On behalf of the jurisdiction subgroup rapporteurs, please find attached two documents that will be discussed in the upcoming plenary.

Best

Mathieu

De : Greg Shatan [mailto:gregshatanipc@gmail.com] Envoyé : mercredi 14 décembre 2016 07:37 À : Mathieu.Weill@afnic.fr; León Felipe Sánchez Ambía; Thomas Rickert; acct-staff@icann.org Objet : Jurisdiction Proposed Questions and Poll Results

​Co-Chairs and Staff:

The Jurisdiction Subgroup is considering distributing a questionnaire. The first attachment shows the proposed preamble (introduction to the questions) and each of the questions proposed in the Subgroup.

The second attachment shows the results of a poll taken in the Subgroup to get a sense of support in the group for each of the questions.

These documents should be sent to the CCWG Plenary for discussion.

Greg

_______________________________________________ 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

+1 Jorge. Milton, if one of your arguments for deleting Q4 is lack of time of the respondents, I hope you realize how weak these kind of claims are, and how they do not support your position. We should never be afraid of compiling information. After 2 years of working together, this group has shown to be mature enough to be able to weed out, once the answers have been received. Rafael De: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] En nombre de Jorge.Cancio@bakom.admin.ch Enviado el: jueves, 15 de diciembre de 2016 23:23 Para: milton@gatech.edu; mathieu.weill@afnic.fr; accountability-cross-community@icann.org Asunto: Re: [CCWG-ACCT] Jurisdiction Proposed Questions and Poll Results Dear Milton I feel the supposed dangers of the fourth question are being exaggerated – we are mature enough to distinguish well-reasoned opinions from mere hypothesis. And respondents are also well-prepared to deal with 4 instead of 3 questions – I do not see any serious danger of overburdening them because of that. We could make clear that respondents only have to answer what they deem relevant. Without wanting to repeat myself: to exclude a question that was supported by a slight majority in the poll indicates some fear on what could back in terms of substance – not because it would be useless, but because some in the group would not like the arguments being made. I’m of the opinion that if we have good arguments and continue with a rational conversation there is no reason for such a fear whatsoever. BTW: did the CCWG Plenary decide on this? Or give any direction? I would not like to spend time on a topic already decided… Kind regards Jorge Von: Mueller, Milton L [mailto:milton@gatech.edu] Gesendet: Donnerstag, 15. Dezember 2016 23:13 An: Cancio Jorge BAKOM <Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>>; mathieu.weill@afnic.fr<mailto:mathieu.weill@afnic.fr>; accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Betreff: RE: Jurisdiction Proposed Questions and Poll Results Jorge Question 4 clearly does not have consensus support from the group. What DOES has clear overwhelming consensus is: a) Questions 1-3, and b) support for sending out the first 3 questions if 4 does not have sufficient support. Worse, Q4 basically defeats the purpose of the entire fact-finding mission. Our first 3 questions are short, clear and simple and factual in terms of what is needed to answer them The 4th question is worded in a wooly and confusion manner and is asking for opinions, not facts. You have to understand that the time and attention span of survey respondents is limited. If you throw a long, ambiguous and unclear question at them you get fewer responses. And by asking for opinions rather than facts, Q4 taints the rest of the questions and we are likely to get more opinions and fewer facts as a result. Let’s bring this to a close and send out the factual questions by themselves. If people want to initiate another process to send out a completely different kind of question, let it be done separately. --MM From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch> Sent: Wednesday, December 14, 2016 5:06 AM To: mathieu.weill@afnic.fr<mailto:mathieu.weill@afnic.fr>; accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Jurisdiction Proposed Questions and Poll Results Dear CCWG I apologize for not being able to attend today’s call due to other prior engagements. Let me add that I’m in support of sending out all 4 questions prepared in the Jurisdiction Group. I feel that at this point of our discussions, where we are trying to gather as many facts, experiences and reasoned opinions as possible which are relevant for the influence that ICANN’s jurisdiction has on its operations and accountability mechanisms, we should not rule out questions (as question nr. 4) that have been considered important by an important part of the Subgroup (in fact, by a slight majority of it). At later stages we may determine whether ingoing responses regarding that question are factual or are mere opinions without a well-founded basis. At this moment I think that excluding relevant questions could give rise to wrong perceptions and could potentially prevent us from knowing relevant experiences/assessments covered only by question nr. 4. @staff: please note these comments in the relevant part of the call. Thanks and Best regards Jorge Von: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] Im Auftrag von Mathieu Weill Gesendet: Mittwoch, 14. Dezember 2016 08:44 An: Accountability Cross Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Betreff: [CCWG-ACCT] TR: Jurisdiction Proposed Questions and Poll Results Dear Colleagues, On behalf of the jurisdiction subgroup rapporteurs, please find attached two documents that will be discussed in the upcoming plenary. Best Mathieu De : Greg Shatan [mailto:gregshatanipc@gmail.com] Envoyé : mercredi 14 décembre 2016 07:37 À : Mathieu.Weill@afnic.fr<mailto:Mathieu.Weill@afnic.fr>; León Felipe Sánchez Ambía; Thomas Rickert; acct-staff@icann.org<mailto:acct-staff@icann.org> Objet : Jurisdiction Proposed Questions and Poll Results ​Co-Chairs and Staff: The Jurisdiction Subgroup is considering distributing a questionnaire. The first attachment shows the proposed preamble (introduction to the questions) and each of the questions proposed in the Subgroup. The second attachment shows the results of a poll taken in the Subgroup to get a sense of support in the group for each of the questions. These documents should be sent to the CCWG Plenary for discussion. Greg

We have to do now a thorough examination if our tentative conclusion is right: ICANN's establishment in the U.S. - California law - is the best. International organisations do this assessment all the time, even as a strong tendency to keep the seat can be noticed. Thus: the more feedback we get the better; hopefully also encourage some academic research on this topic. Best, Erich Schweighofer ________________________________ Von: accountability-cross-community-bounces@icann.org [accountability-cross-community-bounces@icann.org]" im Auftrag von "Arasteh [kavouss.arasteh@gmail.com] Gesendet: Freitag, 16. Dezember 2016 11:46 An: Perez Galindo, Rafael Cc: accountability-cross-community@icann.org Betreff: Re: [CCWG-ACCT] Jurisdiction Proposed Questions and Poll Results Dear Jorge, Rafael These are non valid excuse not to publish Q4 as our US colleagues do not want to even get some comments on that relation. We then have to also object to send out Qs 1-3. Nothing is agreed until everything is agreed No questions go out or all questions are published. The community are being captured by a group of people belonging to certain country Forgetting the rest of the entire community Kavouss Sent from my iPhone On 16 Dec 2016, at 10:27, Perez Galindo, Rafael <RPEREZGA@minetad.es<mailto:RPEREZGA@minetad.es>> wrote: +1 Jorge. Milton, if one of your arguments for deleting Q4 is lack of time of the respondents, I hope you realize how weak these kind of claims are, and how they do not support your position. We should never be afraid of compiling information. After 2 years of working together, this group has shown to be mature enough to be able to weed out, once the answers have been received. Rafael De: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] En nombre de Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch> Enviado el: jueves, 15 de diciembre de 2016 23:23 Para: milton@gatech.edu<mailto:milton@gatech.edu>; mathieu.weill@afnic.fr<mailto:mathieu.weill@afnic.fr>; accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Asunto: Re: [CCWG-ACCT] Jurisdiction Proposed Questions and Poll Results Dear Milton I feel the supposed dangers of the fourth question are being exaggerated – we are mature enough to distinguish well-reasoned opinions from mere hypothesis. And respondents are also well-prepared to deal with 4 instead of 3 questions – I do not see any serious danger of overburdening them because of that. We could make clear that respondents only have to answer what they deem relevant. Without wanting to repeat myself: to exclude a question that was supported by a slight majority in the poll indicates some fear on what could back in terms of substance – not because it would be useless, but because some in the group would not like the arguments being made. I’m of the opinion that if we have good arguments and continue with a rational conversation there is no reason for such a fear whatsoever. BTW: did the CCWG Plenary decide on this? Or give any direction? I would not like to spend time on a topic already decided… Kind regards Jorge Von: Mueller, Milton L [mailto:milton@gatech.edu] Gesendet: Donnerstag, 15. Dezember 2016 23:13 An: Cancio Jorge BAKOM <Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>>; mathieu.weill@afnic.fr<mailto:mathieu.weill@afnic.fr>; accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Betreff: RE: Jurisdiction Proposed Questions and Poll Results Jorge Question 4 clearly does not have consensus support from the group. What DOES has clear overwhelming consensus is: a) Questions 1-3, and b) support for sending out the first 3 questions if 4 does not have sufficient support. Worse, Q4 basically defeats the purpose of the entire fact-finding mission. Our first 3 questions are short, clear and simple and factual in terms of what is needed to answer them The 4th question is worded in a wooly and confusion manner and is asking for opinions, not facts. You have to understand that the time and attention span of survey respondents is limited. If you throw a long, ambiguous and unclear question at them you get fewer responses. And by asking for opinions rather than facts, Q4 taints the rest of the questions and we are likely to get more opinions and fewer facts as a result. Let’s bring this to a close and send out the factual questions by themselves. If people want to initiate another process to send out a completely different kind of question, let it be done separately. --MM From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch> Sent: Wednesday, December 14, 2016 5:06 AM To: mathieu.weill@afnic.fr<mailto:mathieu.weill@afnic.fr>; accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Jurisdiction Proposed Questions and Poll Results Dear CCWG I apologize for not being able to attend today’s call due to other prior engagements. Let me add that I’m in support of sending out all 4 questions prepared in the Jurisdiction Group. I feel that at this point of our discussions, where we are trying to gather as many facts, experiences and reasoned opinions as possible which are relevant for the influence that ICANN’s jurisdiction has on its operations and accountability mechanisms, we should not rule out questions (as question nr. 4) that have been considered important by an important part of the Subgroup (in fact, by a slight majority of it). At later stages we may determine whether ingoing responses regarding that question are factual or are mere opinions without a well-founded basis. At this moment I think that excluding relevant questions could give rise to wrong perceptions and could potentially prevent us from knowing relevant experiences/assessments covered only by question nr. 4. @staff: please note these comments in the relevant part of the call. Thanks and Best regards Jorge Von: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] Im Auftrag von Mathieu Weill Gesendet: Mittwoch, 14. Dezember 2016 08:44 An: Accountability Cross Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Betreff: [CCWG-ACCT] TR: Jurisdiction Proposed Questions and Poll Results Dear Colleagues, On behalf of the jurisdiction subgroup rapporteurs, please find attached two documents that will be discussed in the upcoming plenary. Best Mathieu De : Greg Shatan [mailto:gregshatanipc@gmail.com] Envoyé : mercredi 14 décembre 2016 07:37 À : Mathieu.Weill@afnic.fr<mailto:Mathieu.Weill@afnic.fr>; León Felipe Sánchez Ambía; Thomas Rickert; acct-staff@icann.org<mailto:acct-staff@icann.org> Objet : Jurisdiction Proposed Questions and Poll Results ​Co-Chairs and Staff: The Jurisdiction Subgroup is considering distributing a questionnaire. The first attachment shows the proposed preamble (introduction to the questions) and each of the questions proposed in the Subgroup. The second attachment shows the results of a poll taken in the Subgroup to get a sense of support in the group for each of the questions. These documents should be sent to the CCWG Plenary for discussion. Greg _______________________________________________ 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

I think the idea of academic exercise cannot be disregarded totally. While considering the best possible methods, and/or options of reaching consensus on this matter, so also room for more views and facts. Would you prefer regretting things you have done to things you have never tried? Wale On Fri, Dec 16, 2016 at 11:44 AM, James Gannon <james@cyberinvasion.net> wrote:

We spent 2 years working on that basis in both the CWG and CCWG, and then spent 2 years working on the reforms that we have just implemented.

I think the time for academic research has passed and we need to focus on ensuring that we are implementing the reforms properly and with oversight, and that we are addressing the issue of jurisdiction as defined in WS1, not reinventing the wheel of our entire WS1 work.

-James

-----Original Message----- From: accountability-cross-community-bounces@icann.org [mailto: accountability-cross-community-bounces@icann.org] On Behalf Of Schweighofer Erich Sent: Friday, December 16, 2016 10:59 AM To: Arasteh <kavouss.arasteh@gmail.com>; Perez Galindo, Rafael < RPEREZGA@minetad.es> Cc: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Jurisdiction Proposed Questions and Poll Results

We have to do now a thorough examination if our tentative conclusion is right: ICANN's establishment in the U.S. - California law - is the best. International organisations do this assessment all the time, even as a strong tendency to keep the seat can be noticed. Thus: the more feedback we get the better; hopefully also encourage some academic research on this topic. Best, Erich Schweighofer ________________________________ Von: accountability-cross-community-bounces@icann.org [ accountability-cross-community-bounces@icann.org]" im Auftrag von "Arasteh [kavouss.arasteh@gmail.com] Gesendet: Freitag, 16. Dezember 2016 11:46 An: Perez Galindo, Rafael Cc: accountability-cross-community@icann.org Betreff: Re: [CCWG-ACCT] Jurisdiction Proposed Questions and Poll Results

Dear Jorge, Rafael These are non valid excuse not to publish Q4 as our US colleagues do not want to even get some comments on that relation. We then have to also object to send out Qs 1-3. Nothing is agreed until everything is agreed No questions go out or all questions are published. The community are being captured by a group of people belonging to certain country Forgetting the rest of the entire community Kavouss

Sent from my iPhone

On 16 Dec 2016, at 10:27, Perez Galindo, Rafael <RPEREZGA@minetad.es <mailto:RPEREZGA@minetad.es>> wrote:

+1 Jorge.

Milton, if one of your arguments for deleting Q4 is lack of time of the respondents, I hope you realize how weak these kind of claims are, and how they do not support your position.

We should never be afraid of compiling information. After 2 years of working together, this group has shown to be mature enough to be able to weed out, once the answers have been received.

Rafael

De: accountability-cross-community-bounces@icann.org<mailto: accountability-cross-community-bounces@icann.org> [mailto: accountability-cross-community-bounces@icann.org] En nombre de Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch> Enviado el: jueves, 15 de diciembre de 2016 23:23 Para: milton@gatech.edu<mailto:milton@gatech.edu>; mathieu.weill@afnic.fr <mailto:mathieu.weill@afnic.fr>; accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> Asunto: Re: [CCWG-ACCT] Jurisdiction Proposed Questions and Poll Results

Dear Milton

I feel the supposed dangers of the fourth question are being exaggerated – we are mature enough to distinguish well-reasoned opinions from mere hypothesis. And respondents are also well-prepared to deal with 4 instead of 3 questions – I do not see any serious danger of overburdening them because of that. We could make clear that respondents only have to answer what they deem relevant.

Without wanting to repeat myself: to exclude a question that was supported by a slight majority in the poll indicates some fear on what could back in terms of substance – not because it would be useless, but because some in the group would not like the arguments being made.

I’m of the opinion that if we have good arguments and continue with a rational conversation there is no reason for such a fear whatsoever.

BTW: did the CCWG Plenary decide on this? Or give any direction? I would not like to spend time on a topic already decided…

Kind regards

Jorge

Von: Mueller, Milton L [mailto:milton@gatech.edu] Gesendet: Donnerstag, 15. Dezember 2016 23:13 An: Cancio Jorge BAKOM <Jorge.Cancio@bakom.admin.ch<mailto: Jorge.Cancio@bakom.admin.ch>>; mathieu.weill@afnic.fr<mailto: mathieu.weill@afnic.fr>; accountability-cross-community@icann.org<mailto: accountability-cross-community@icann.org> Betreff: RE: Jurisdiction Proposed Questions and Poll Results

Jorge Question 4 clearly does not have consensus support from the group. What DOES has clear overwhelming consensus is: a) Questions 1-3, and b) support for sending out the first 3 questions if 4 does not have sufficient support.

Worse, Q4 basically defeats the purpose of the entire fact-finding mission. Our first 3 questions are short, clear and simple and factual in terms of what is needed to answer them The 4th question is worded in a wooly and confusion manner and is asking for opinions, not facts. You have to understand that the time and attention span of survey respondents is limited. If you throw a long, ambiguous and unclear question at them you get fewer responses. And by asking for opinions rather than facts, Q4 taints the rest of the questions and we are likely to get more opinions and fewer facts as a result.

Let’s bring this to a close and send out the factual questions by themselves. If people want to initiate another process to send out a completely different kind of question, let it be done separately.

--MM

From: accountability-cross-community-bounces@icann.org<mailto: accountability-cross-community-bounces@icann.org> [mailto: accountability-cross-community-bounces@icann.org] On Behalf Of Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch> Sent: Wednesday, December 14, 2016 5:06 AM To: mathieu.weill@afnic.fr<mailto:mathieu.weill@afnic.fr>; accountability-cross-community@icann.org<mailto:acc ountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Jurisdiction Proposed Questions and Poll Results

Dear CCWG

I apologize for not being able to attend today’s call due to other prior engagements.

Let me add that I’m in support of sending out all 4 questions prepared in the Jurisdiction Group.

I feel that at this point of our discussions, where we are trying to gather as many facts, experiences and reasoned opinions as possible which are relevant for the influence that ICANN’s jurisdiction has on its operations and accountability mechanisms, we should not rule out questions (as question nr. 4) that have been considered important by an important part of the Subgroup (in fact, by a slight majority of it).

At later stages we may determine whether ingoing responses regarding that question are factual or are mere opinions without a well-founded basis.

At this moment I think that excluding relevant questions could give rise to wrong perceptions and could potentially prevent us from knowing relevant experiences/assessments covered only by question nr. 4.

@staff: please note these comments in the relevant part of the call.

Thanks and Best regards

Jorge

Von: accountability-cross-community-bounces@icann.org<mailto: accountability-cross-community-bounces@icann.org> [mailto: accountability-cross-community-bounces@icann.org] Im Auftrag von Mathieu Weill Gesendet: Mittwoch, 14. Dezember 2016 08:44 An: Accountability Cross Community <accountability-cross- community@icann.org<mailto:accountability-cross-community@icann.org>> Betreff: [CCWG-ACCT] TR: Jurisdiction Proposed Questions and Poll Results

Dear Colleagues,

On behalf of the jurisdiction subgroup rapporteurs, please find attached two documents that will be discussed in the upcoming plenary.

Best Mathieu

De : Greg Shatan [mailto:gregshatanipc@gmail.com] Envoyé : mercredi 14 décembre 2016 07:37 À : Mathieu.Weill@afnic.fr<mailto: Mathieu.Weill@afnic.fr>; León Felipe Sánchez Ambía; Thomas Rickert; acct-staff@icann.org<mailto:acct-staff@icann.org> Objet : Jurisdiction Proposed Questions and Poll Results

​Co-Chairs and Staff:

The Jurisdiction Subgroup is considering distributing a questionnaire. The first attachment shows the proposed preamble (introduction to the questions) and each of the questions proposed in the Subgroup.

The second attachment shows the results of a poll taken in the Subgroup to get a sense of support in the group for each of the questions.

These documents should be sent to the CCWG Plenary for discussion.

Greg _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross- Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross- Community@icann.org 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

With all respect, these demands for a breakdown of views expressed by region and nation, and statements implying that views expressed by citizens of certain countries are somehow suspect or deserve less weight, are unprecedented and offensive. In a decade of work within ICANN I have never before seen requests that individual views should be related to geographic location as a means of judging their authenticity or value. If we are going to go down that road then to get a complete picture we will have to also note where members are citizens of nations that have strained relations with the US or which favor a multilateral over a multistakeholder model. All that will do is create unnecessary division. ICANN and this subgroup are open to participation by all, and the views expressed by members should be judged on their merits alone. Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/Cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Arasteh Sent: Friday, December 16, 2016 5:46 AM To: Perez Galindo, Rafael Cc: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Jurisdiction Proposed Questions and Poll Results Dear Jorge, Rafael These are non valid excuse not to publish Q4 as our US colleagues do not want to even get some comments on that relation. We then have to also object to send out Qs 1-3. Nothing is agreed until everything is agreed No questions go out or all questions are published. The community are being captured by a group of people belonging to certain country Forgetting the rest of the entire community Kavouss Sent from my iPhone On 16 Dec 2016, at 10:27, Perez Galindo, Rafael <RPEREZGA@minetad.es<mailto:RPEREZGA@minetad.es>> wrote: +1 Jorge. Milton, if one of your arguments for deleting Q4 is lack of time of the respondents, I hope you realize how weak these kind of claims are, and how they do not support your position. We should never be afraid of compiling information. After 2 years of working together, this group has shown to be mature enough to be able to weed out, once the answers have been received. Rafael De: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] En nombre de Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch> Enviado el: jueves, 15 de diciembre de 2016 23:23 Para: milton@gatech.edu<mailto:milton@gatech.edu>; mathieu.weill@afnic.fr<mailto:mathieu.weill@afnic.fr>; accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Asunto: Re: [CCWG-ACCT] Jurisdiction Proposed Questions and Poll Results Dear Milton I feel the supposed dangers of the fourth question are being exaggerated – we are mature enough to distinguish well-reasoned opinions from mere hypothesis. And respondents are also well-prepared to deal with 4 instead of 3 questions – I do not see any serious danger of overburdening them because of that. We could make clear that respondents only have to answer what they deem relevant. Without wanting to repeat myself: to exclude a question that was supported by a slight majority in the poll indicates some fear on what could back in terms of substance – not because it would be useless, but because some in the group would not like the arguments being made. I’m of the opinion that if we have good arguments and continue with a rational conversation there is no reason for such a fear whatsoever. BTW: did the CCWG Plenary decide on this? Or give any direction? I would not like to spend time on a topic already decided… Kind regards Jorge Von: Mueller, Milton L [mailto:milton@gatech.edu] Gesendet: Donnerstag, 15. Dezember 2016 23:13 An: Cancio Jorge BAKOM <Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>>; mathieu.weill@afnic.fr<mailto:mathieu.weill@afnic.fr>; accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Betreff: RE: Jurisdiction Proposed Questions and Poll Results Jorge Question 4 clearly does not have consensus support from the group. What DOES has clear overwhelming consensus is: a) Questions 1-3, and b) support for sending out the first 3 questions if 4 does not have sufficient support. Worse, Q4 basically defeats the purpose of the entire fact-finding mission. Our first 3 questions are short, clear and simple and factual in terms of what is needed to answer them The 4th question is worded in a wooly and confusion manner and is asking for opinions, not facts. You have to understand that the time and attention span of survey respondents is limited. If you throw a long, ambiguous and unclear question at them you get fewer responses. And by asking for opinions rather than facts, Q4 taints the rest of the questions and we are likely to get more opinions and fewer facts as a result. Let’s bring this to a close and send out the factual questions by themselves. If people want to initiate another process to send out a completely different kind of question, let it be done separately. --MM From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch> Sent: Wednesday, December 14, 2016 5:06 AM To: mathieu.weill@afnic.fr<mailto:mathieu.weill@afnic.fr>; accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Jurisdiction Proposed Questions and Poll Results Dear CCWG I apologize for not being able to attend today’s call due to other prior engagements. Let me add that I’m in support of sending out all 4 questions prepared in the Jurisdiction Group. I feel that at this point of our discussions, where we are trying to gather as many facts, experiences and reasoned opinions as possible which are relevant for the influence that ICANN’s jurisdiction has on its operations and accountability mechanisms, we should not rule out questions (as question nr. 4) that have been considered important by an important part of the Subgroup (in fact, by a slight majority of it). At later stages we may determine whether ingoing responses regarding that question are factual or are mere opinions without a well-founded basis. At this moment I think that excluding relevant questions could give rise to wrong perceptions and could potentially prevent us from knowing relevant experiences/assessments covered only by question nr. 4. @staff: please note these comments in the relevant part of the call. Thanks and Best regards Jorge Von: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] Im Auftrag von Mathieu Weill Gesendet: Mittwoch, 14. Dezember 2016 08:44 An: Accountability Cross Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Betreff: [CCWG-ACCT] TR: Jurisdiction Proposed Questions and Poll Results Dear Colleagues, On behalf of the jurisdiction subgroup rapporteurs, please find attached two documents that will be discussed in the upcoming plenary. Best Mathieu De : Greg Shatan [mailto:gregshatanipc@gmail.com] Envoyé : mercredi 14 décembre 2016 07:37 À : Mathieu.Weill@afnic.fr<mailto:Mathieu.Weill@afnic.fr>; León Felipe Sánchez Ambía; Thomas Rickert; acct-staff@icann.org<mailto:acct-staff@icann.org> Objet : Jurisdiction Proposed Questions and Poll Results ​Co-Chairs and Staff: The Jurisdiction Subgroup is considering distributing a questionnaire. The first attachment shows the proposed preamble (introduction to the questions) and each of the questions proposed in the Subgroup. The second attachment shows the results of a poll taken in the Subgroup to get a sense of support in the group for each of the questions. These documents should be sent to the CCWG Plenary for discussion. Greg _______________________________________________ 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 ________________________________ No virus found in this message. Checked by AVG - www.avg.com<http://www.avg.com> Version: 2016.0.7924 / Virus Database: 4664/13557 - Release Date: 12/08/16 Internal Virus Database is out of date.

Jorge: Bear in mind that I do not oppose sending out Q4. I just don’t want it to be part of the same exercise as the other questions. As noted before, the less focused the intent of a survey is, the less meaningful the results will be. IF you want to send out a poorly phrased, open-ended, unfocused question, feel free to do so. Just don’t pollute a potentially meaningful set of questions with it. --MM From: Jorge.Cancio@bakom.admin.ch [mailto:Jorge.Cancio@bakom.admin.ch] Sent: Thursday, December 15, 2016 5:23 PM To: Mueller, Milton L <milton@gatech.edu>; mathieu.weill@afnic.fr; accountability-cross-community@icann.org Subject: AW: Jurisdiction Proposed Questions and Poll Results Dear Milton I feel the supposed dangers of the fourth question are being exaggerated – we are mature enough to distinguish well-reasoned opinions from mere hypothesis. And respondents are also well-prepared to deal with 4 instead of 3 questions – I do not see any serious danger of overburdening them because of that. We could make clear that respondents only have to answer what they deem relevant. Without wanting to repeat myself: to exclude a question that was supported by a slight majority in the poll indicates some fear on what could back in terms of substance – not because it would be useless, but because some in the group would not like the arguments being made. I’m of the opinion that if we have good arguments and continue with a rational conversation there is no reason for such a fear whatsoever. BTW: did the CCWG Plenary decide on this? Or give any direction? I would not like to spend time on a topic already decided… Kind regards Jorge Von: Mueller, Milton L [mailto:milton@gatech.edu] Gesendet: Donnerstag, 15. Dezember 2016 23:13 An: Cancio Jorge BAKOM <Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>>; mathieu.weill@afnic.fr<mailto:mathieu.weill@afnic.fr>; accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Betreff: RE: Jurisdiction Proposed Questions and Poll Results Jorge Question 4 clearly does not have consensus support from the group. What DOES has clear overwhelming consensus is: a) Questions 1-3, and b) support for sending out the first 3 questions if 4 does not have sufficient support. Worse, Q4 basically defeats the purpose of the entire fact-finding mission. Our first 3 questions are short, clear and simple and factual in terms of what is needed to answer them The 4th question is worded in a wooly and confusion manner and is asking for opinions, not facts. You have to understand that the time and attention span of survey respondents is limited. If you throw a long, ambiguous and unclear question at them you get fewer responses. And by asking for opinions rather than facts, Q4 taints the rest of the questions and we are likely to get more opinions and fewer facts as a result. Let’s bring this to a close and send out the factual questions by themselves. If people want to initiate another process to send out a completely different kind of question, let it be done separately. --MM From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch> Sent: Wednesday, December 14, 2016 5:06 AM To: mathieu.weill@afnic.fr<mailto:mathieu.weill@afnic.fr>; accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Jurisdiction Proposed Questions and Poll Results Dear CCWG I apologize for not being able to attend today’s call due to other prior engagements. Let me add that I’m in support of sending out all 4 questions prepared in the Jurisdiction Group. I feel that at this point of our discussions, where we are trying to gather as many facts, experiences and reasoned opinions as possible which are relevant for the influence that ICANN’s jurisdiction has on its operations and accountability mechanisms, we should not rule out questions (as question nr. 4) that have been considered important by an important part of the Subgroup (in fact, by a slight majority of it). At later stages we may determine whether ingoing responses regarding that question are factual or are mere opinions without a well-founded basis. At this moment I think that excluding relevant questions could give rise to wrong perceptions and could potentially prevent us from knowing relevant experiences/assessments covered only by question nr. 4. @staff: please note these comments in the relevant part of the call. Thanks and Best regards Jorge Von: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] Im Auftrag von Mathieu Weill Gesendet: Mittwoch, 14. Dezember 2016 08:44 An: Accountability Cross Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Betreff: [CCWG-ACCT] TR: Jurisdiction Proposed Questions and Poll Results Dear Colleagues, On behalf of the jurisdiction subgroup rapporteurs, please find attached two documents that will be discussed in the upcoming plenary. Best Mathieu De : Greg Shatan [mailto:gregshatanipc@gmail.com] Envoyé : mercredi 14 décembre 2016 07:37 À : Mathieu.Weill@afnic.fr<mailto:Mathieu.Weill@afnic.fr>; León Felipe Sánchez Ambía; Thomas Rickert; acct-staff@icann.org<mailto:acct-staff@icann.org> Objet : Jurisdiction Proposed Questions and Poll Results ​Co-Chairs and Staff: The Jurisdiction Subgroup is considering distributing a questionnaire. The first attachment shows the proposed preamble (introduction to the questions) and each of the questions proposed in the Subgroup. The second attachment shows the results of a poll taken in the Subgroup to get a sense of support in the group for each of the questions. These documents should be sent to the CCWG Plenary for discussion. Greg

Colleagues, I may be completely wrong here, and if so, excuse me. The discussion around Question 4 reminds me, from my Canadian vantage point, of the early this year U.S. Republican Nominating Conference in which the now U.S. President Elect was opposed by many in the Republican party, and their motto & chant was "Anybody but Trump". That was of course a non-starter since sound strategy says "Who else? Present a contender.". Whether or not jurisdiction should be an issue, immediately post IANA Transition and dealing with those issues is not the time to move it to the top of a "to do" list. The "to do" plate is full, and nothing is obviously broken. Beyond that, there is time for the research around "Where else? Present contender locations.". I used to hear, in the ICANN event hallways, whispers about Geneva, then we got the Olympic and FIFA (football/soccer) organization scandals. What they made clear is that location is less important that organizational transparency and accountability. These are areas where the ICANN multistakeholder constituencies are hard at work, working on ICANN improvements. I may be completely wrong here, but no matter what our individual independent views are about "location and jurisdiction" there is plenty on our "to do" list. That work is relevant no matter where ICANN resides. For those of us who feel that there are jurisdiction and location issues, I would suggest that research, call it due diligence if that sounds more non-academic, be done to identify contenders, and at an appropriate time the existing location and jurisdiction can be evaluated against a list of contenders. Sam Lanfranco NPOC/csih

Reviewing the text of proposed Q4 (below), it's such an open-ended fishing expedition that playing with language in an attempt to improve it is IMHO unlikely to bear useful results. That said, in my view is that it would be more acceptable if only the text marked in bold was sent and the remainder relating to “future risk” discarded -- as speculation on the future is as limitless as the human imagination, and scenarios can be spun that have low to no probability of ever occurring. Such speculation should also be measured against the fact that ICANN has held the same legal status since its inception and it has not interfered with “ICANN's ability to carry out its policies throughout the world”. That latter portion of the question also invites input on proposed alternative jurisdictions which is bound to be incomplete and unverifiable absent very extensive new legal and policy research. And it prematurely raises the possibility of changing ICANN’s locus of incorporation before any convincing evidence, much less a consensus decision, has been made that continued status as a California non-profit – the legal framework for which the enhanced accountability measures were designed at great cost in time and legal input – is so worrisome or dangerous that research on alternative jurisdictions should be undertaken. 4. What are the advantages or disadvantages, if any, relating to ICANN's jurisdiction*, particularly with regard to the actual operation of ICANN’s policies and accountability mechanisms? Please support your response with appropriate examples, references to specific laws, case studies, other studies, and analysis. In particular, please indicate if there are current or past instances that highlight such advantages or problems. In terms of likely future risk, please mention specific ways in which U.S. or California laws safeguard or interfere with, or may be used to safeguard or interfere with, ICANN's ability to carry out its policies throughout the world. For any disadvantage identified, please identify alternatives (including other jurisdictions), if any, where that problem would not occur. For each such jurisdiction or other alternative, please specify whether and how it would support the outcomes of CCWG-Accountability Work Stream 1, identify the risks of those jurisdictions or other alternatives, and discuss the risks associated with changing from the current situation. Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/Cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey -----Original Message----- From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Jorge.Cancio@bakom.admin.ch Sent: Friday, December 16, 2016 11:14 AM To: milton@gatech.edu; accountability-cross-community@icann.org; mathieu.weill@afnic.fr Subject: Re: [CCWG-ACCT] Jurisdiction Proposed Questions and Poll Results Dear Milton Good to know that you do not oppose it. Maybe we only have to improve the language: let's work on that. regards Jorge ________________________________ Von: Mueller, Milton L <milton@gatech.edu<mailto:milton@gatech.edu>> Datum: 16. Dezember 2016 um 15:06:26 MEZ An: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>>, mathieu.weill@afnic.fr<mailto:mathieu.weill@afnic.fr> <mathieu.weill@afnic.fr<mailto:mathieu.weill@afnic.fr>>, Cancio Jorge BAKOM <Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>> Betreff: RE: Jurisdiction Proposed Questions and Poll Results Jorge: Bear in mind that I do not oppose sending out Q4. I just don’t want it to be part of the same exercise as the other questions. As noted before, the less focused the intent of a survey is, the less meaningful the results will be. IF you want to send out a poorly phrased, open-ended, unfocused question, feel free to do so. Just don’t pollute a potentially meaningful set of questions with it. --MM From: Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch> [mailto:Jorge.Cancio@bakom.admin.ch] Sent: Thursday, December 15, 2016 5:23 PM To: Mueller, Milton L <milton@gatech.edu<mailto:milton@gatech.edu>>; mathieu.weill@afnic.fr<mailto:mathieu.weill@afnic.fr>; accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: AW: Jurisdiction Proposed Questions and Poll Results Dear Milton I feel the supposed dangers of the fourth question are being exaggerated – we are mature enough to distinguish well-reasoned opinions from mere hypothesis. And respondents are also well-prepared to deal with 4 instead of 3 questions – I do not see any serious danger of overburdening them because of that. We could make clear that respondents only have to answer what they deem relevant. Without wanting to repeat myself: to exclude a question that was supported by a slight majority in the poll indicates some fear on what could back in terms of substance – not because it would be useless, but because some in the group would not like the arguments being made. I’m of the opinion that if we have good arguments and continue with a rational conversation there is no reason for such a fear whatsoever. BTW: did the CCWG Plenary decide on this? Or give any direction? I would not like to spend time on a topic already decided… Kind regards Jorge Von: Mueller, Milton L [mailto:milton@gatech.edu] Gesendet: Donnerstag, 15. Dezember 2016 23:13 An: Cancio Jorge BAKOM <Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch%3cmailto:Jorge.Cancio@bakom.admin.ch>>>; mathieu.weill@afnic.fr<mailto:mathieu.weill@afnic.fr<mailto:mathieu.weill@afnic.fr%3cmailto:mathieu.weill@afnic.fr>>; accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org%3cmailto:accountability-cross-community@icann.org>> Betreff: RE: Jurisdiction Proposed Questions and Poll Results Jorge Question 4 clearly does not have consensus support from the group. What DOES has clear overwhelming consensus is: a) Questions 1-3, and b) support for sending out the first 3 questions if 4 does not have sufficient support. Worse, Q4 basically defeats the purpose of the entire fact-finding mission. Our first 3 questions are short, clear and simple and factual in terms of what is needed to answer them The 4th question is worded in a wooly and confusion manner and is asking for opinions, not facts. You have to understand that the time and attention span of survey respondents is limited. If you throw a long, ambiguous and unclear question at them you get fewer responses. And by asking for opinions rather than facts, Q4 taints the rest of the questions and we are likely to get more opinions and fewer facts as a result. Let’s bring this to a close and send out the factual questions by themselves. If people want to initiate another process to send out a completely different kind of question, let it be done separately. --MM From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org%3cmailto:accountability-cross-community-bounces@icann.org>> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch%3cmailto:Jorge.Cancio@bakom.admin.ch>> Sent: Wednesday, December 14, 2016 5:06 AM To: mathieu.weill@afnic.fr<mailto:mathieu.weill@afnic.fr<mailto:mathieu.weill@afnic.fr%3cmailto:mathieu.weill@afnic.fr>>; accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org%3cmailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] Jurisdiction Proposed Questions and Poll Results Dear CCWG I apologize for not being able to attend today’s call due to other prior engagements. Let me add that I’m in support of sending out all 4 questions prepared in the Jurisdiction Group. I feel that at this point of our discussions, where we are trying to gather as many facts, experiences and reasoned opinions as possible which are relevant for the influence that ICANN’s jurisdiction has on its operations and accountability mechanisms, we should not rule out questions (as question nr. 4) that have been considered important by an important part of the Subgroup (in fact, by a slight majority of it). At later stages we may determine whether ingoing responses regarding that question are factual or are mere opinions without a well-founded basis. At this moment I think that excluding relevant questions could give rise to wrong perceptions and could potentially prevent us from knowing relevant experiences/assessments covered only by question nr. 4. @staff: please note these comments in the relevant part of the call. Thanks and Best regards Jorge Von: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org%3cmailto:accountability-cross-community-bounces@icann.org>> [mailto:accountability-cross-community-bounces@icann.org] Im Auftrag von Mathieu Weill Gesendet: Mittwoch, 14. Dezember 2016 08:44 An: Accountability Cross Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org%3cmailto:accountability-cross-community@icann.org>>> Betreff: [CCWG-ACCT] TR: Jurisdiction Proposed Questions and Poll Results Dear Colleagues, On behalf of the jurisdiction subgroup rapporteurs, please find attached two documents that will be discussed in the upcoming plenary. Best Mathieu De : Greg Shatan [mailto:gregshatanipc@gmail.com] Envoyé : mercredi 14 décembre 2016 07:37 À : Mathieu.Weill@afnic.fr<mailto:Mathieu.Weill@afnic.fr<mailto:Mathieu.Weill@afnic.fr%3cmailto:Mathieu.Weill@afnic.fr>>; León Felipe Sánchez Ambía; Thomas Rickert; acct-staff@icann.org<mailto:acct-staff@icann.org<mailto:acct-staff@icann.org%3cmailto:acct-staff@icann.org>> Objet : Jurisdiction Proposed Questions and Poll Results ​Co-Chairs and Staff: The Jurisdiction Subgroup is considering distributing a questionnaire. The first attachment shows the proposed preamble (introduction to the questions) and each of the questions proposed in the Subgroup. The second attachment shows the results of a poll taken in the Subgroup to get a sense of support in the group for each of the questions. These documents should be sent to the CCWG Plenary for discussion. Greg _______________________________________________ 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 ----- No virus found in this message. Checked by AVG - www.avg.com<http://www.avg.com> Version: 2016.0.7924 / Virus Database: 4664/13557 - Release Date: 12/08/16 Internal Virus Database is out of date.

-----Original Message----- From: Jorge.Cancio@bakom.admin.ch

Good to know that you do not oppose it.

I strenuously oppose it if it is sent out with the other questions. I accept it if it is sent out on its own. Crucial distinction.

Maybe we only have to improve the language: let's work on that.

John Laprise's wording was much, much better: "What are the advantages or disadvantages, if any, relating to changing ICANN’s jurisdiction*, particularly with regard to the actual operation of ICANN’s policies and accountability mechanisms?"

Hi, I agree that the question is biased. it tests a solution, and I thought we were supposed to avoid solutions in the questions. I John's question can work if you drop 'changing' "What are the advantages or disadvantages, if any, relating to ICANN’s jurisdiction*, particularly with regard to the actual operation of ICANN’s policies and accountability mechanisms?" avri On 19-Dec-16 08:10, parminder wrote:

On Saturday 17 December 2016 12:40 AM, Mueller, Milton L wrote:

...

SNIP John Laprise's wording was much, much better: "What are the advantages or disadvantages, if any, relating to changing ICANN’s jurisdiction*, particularly with regard to the actual operation of ICANN’s policies and accountability mechanisms?"

This formulation does not include possibilities of jurisdictional immunity.

Something like

"What are the advantages or disadvantages, if any, relating to changing ICANN’s jurisdiction*, /*or providing possible jurisdictional immunity,*/ particularly with regard to the actual operation of ICANN’s policies and accountability mechanisms?"

would be better.

parminder

...

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Possibilities of jurisdictional immunity? Could you please provide examples of organizations that enjoy such. Best regards, John Laprise, Ph.D. Consulting Scholar <http://www.linkedin.com/in/jplaprise/> http://www.linkedin.com/in/jplaprise/ From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of parminder Sent: Monday, December 19, 2016 7:10 AM To: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Jurisdiction Proposed Questions and Poll Results On Saturday 17 December 2016 12:40 AM, Mueller, Milton L wrote: SNIP John Laprise's wording was much, much better: "What are the advantages or disadvantages, if any, relating to changing ICANN’s jurisdiction*, particularly with regard to the actual operation of ICANN’s policies and accountability mechanisms?" This formulation does not include possibilities of jurisdictional immunity. Something like "What are the advantages or disadvantages, if any, relating to changing ICANN’s jurisdiction*, or providing possible jurisdictional immunity, particularly with regard to the actual operation of ICANN’s policies and accountability mechanisms?" would be better. parminder _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community

I don't think the ILO is analogous. It doesn't make policy/enter into contractual relationships in the same way that ICANN does. Best regards, John Laprise, Ph.D. Consulting Scholar <http://www.linkedin.com/in/jplaprise/> http://www.linkedin.com/in/jplaprise/ From: Marilyn Cade [mailto:marilynscade@hotmail.com] Sent: Monday, December 19, 2016 9:34 AM To: John Laprise <jlaprise@gmail.com>; 'parminder' <parminder@itforchange.net>; accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Jurisdiction Proposed Questions and Poll Results John, I may be wrong, but I think that perhaps ILO? _____ From: accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> <accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> > on behalf of John Laprise <jlaprise@gmail.com <mailto:jlaprise@gmail.com> > Sent: Monday, December 19, 2016 9:44 AM To: 'parminder'; accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Jurisdiction Proposed Questions and Poll Results Possibilities of jurisdictional immunity? Could you please provide examples of organizations that enjoy such. Best regards, John Laprise, Ph.D. Consulting Scholar <http://www.linkedin.com/in/jplaprise/> http://www.linkedin.com/in/jplaprise/ From: accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of parminder Sent: Monday, December 19, 2016 7:10 AM To: accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Jurisdiction Proposed Questions and Poll Results On Saturday 17 December 2016 12:40 AM, Mueller, Milton L wrote: SNIP John Laprise's wording was much, much better: "What are the advantages or disadvantages, if any, relating to changing ICANN's jurisdiction*, particularly with regard to the actual operation of ICANN's policies and accountability mechanisms?" This formulation does not include possibilities of jurisdictional immunity. Something like "What are the advantages or disadvantages, if any, relating to changing ICANN's jurisdiction*, or providing possible jurisdictional immunity, particularly with regard to the actual operation of ICANN's policies and accountability mechanisms?" would be better. parminder _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community

On Monday 19 December 2016 08:14 PM, John Laprise wrote:

Possibilities of jurisdictional immunity? Could you please provide examples of organizations that enjoy such.

John The most well known case of jurisdictional immunity is of course for organisations incorporated under international law. Unlike what has been argued here variously, although international law has to be made by governments through treaties etc that says nothing about the actual governance structure of the concerned organisation, ICANN in this case. International law can, to take an extreme case, hand over complete governance of a body created/ incorporated under international law to you and me... Nothing circumscribes how international law is written as long as all countries agree to it. It is entirely possible, and I think extremely plausible, that they would agree to write in such law the exact governance structure of ICANN as it is at present. Right now too, ICANN exists by and under the strength of its law of incorporation which is US law. In the scenario I present, it would just be international law instead of US law. Yes, there are matters to worked out in this regard, but if democracy and self-determination of all people, equally, is of any importance at all, we can go through the process, including doing the needed innovations as needed. The current international system was not handed over to us by God, it was evolved by people like us, who responded appropriately to newer and newer global challenges, as the one that faces us now. To turn ones face away and say, nothing can be done here, to evolve our democratic international systems, is to vote for a status quo which serves some, but not others. And these are the others that are protesting here, and seeking appropriate change. It is a political issue, lets not treat it as a technical issue, of what is argued to be difficult or too "troublesome" to pursue. Next, even without going the international law route, as has been said many times earlier here, US law allows even non profits to be given jurisdictional immunity. The concerned law is the _United States International Organisations Immunities Act <https://archive.icann.org/en/psc/annex9.pdf>_ . And an example of a US non-profit being given jurisdiction immunity under it is/International Fertilizer and Development Center. /This has been discussed in a report commissioned by ICANN itself which can be found at https://archive.icann.org/en/psc/corell-24aug06.html . I have been unable to understand why can we not agree to even jurisdictional immunity under existing US law, which keeps ICANN in the US, preserves its existing structures, and does go considerable way to address the concerns about those who are concerned about application of US public law on ICANN, and what it may mean for its global governance work. The argument is advanced that this may affect the operation of the newly instituted community accountability mechanism. I dont think this is not true. This mechanism is a matter of internal ICANN governance system, which is a 'private' arrangement with choice of law available to it. It simply has to be put in ICANN bylaws that ICANN governance processes will be subject to adjudication by Californian courts as present. That should do. Of course the mentioned International Fertilizer and Development Centre also must be existing with some governance systems, that admit of external adjudication, even as it enjoys the benefit of jurisdictional immunity from US public laws. Such immunity always only pertains to the policy and such international core activities of the concerned organisation, and associated matters. It would not, for instance, extend to actual crime being committed by its personnel on its premises. All such matters of various distinctions get taken care of when we enter the actual processes of such immunities etc. Right now, the issue is only to decide to go down the route, or not. parminder

Best regards,

John Laprise, Ph.D.

Consulting Scholar

http://www.linkedin.com/in/jplaprise/

*From:*accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] *On Behalf Of *parminder *Sent:* Monday, December 19, 2016 7:10 AM *To:* accountability-cross-community@icann.org *Subject:* Re: [CCWG-ACCT] Jurisdiction Proposed Questions and Poll Results

On Saturday 17 December 2016 12:40 AM, Mueller, Milton L wrote:

SNIP

John Laprise's wording was much, much better:

"What are the advantages or disadvantages, if any, relating to changing ICANN’s jurisdiction*, particularly with regard to the actual operation of ICANN’s policies and accountability mechanisms?"

This formulation does not include possibilities of jurisdictional immunity.

Something like

"What are the advantages or disadvantages, if any, relating to changing ICANN’s jurisdiction*, */or providing possible jurisdictional immunity,/* particularly with regard to the actual operation of ICANN’s policies and accountability mechanisms?"

would be better.

parminder

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Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org>

https://mm.icann.org/mailman/listinfo/accountability-cross-community

“To turn ones face away and say, nothing can be done here, to evolve our democratic international systems, is to vote for a status quo which serves some, but not others.” Rather, it is an acknowledgement of reality. Rule of law is neither globally strong nor evenly distributed. I can imagine a world in which the way forward you describe is plausible but, regrettably, it is not the one we live in. Other systems need strengthening and in some cases even existence before the way forward is open. It’s not a vote for the status quo but a recognition of path dependency. Thanks for the back rounder Parminder. It was, along with some parallel research, quite helpful. The problem remains however that there is no analogous organization to ICANN merely in terms of its contractual authority. I’d also add that many of the benefits of the act are at the discretion of the US Secretary of State and can be revoked. The proposed jurisdictional immunity would also require all governments to sign off on such status, given ICANN’s reach. I know that there is a significant literature on international compacts and law. Given the often decades long time frames for the passage and acceptance of such law, the Internet as we know it is unlikely to exist by the time it comes into force. To your question about why we do not discuss jurisdictional immunity under US law: it is because the domestic political reality of the situation makes such an eventuality so remote as to be hypothetical. The described quest is admirable but IMO is a non-starter. Conditions do not exist presently to make it a possible. Best regards, John Laprise, Ph.D. Consulting Scholar <http://www.linkedin.com/in/jplaprise/> http://www.linkedin.com/in/jplaprise/ From: parminder [mailto:parminder@itforchange.net] Sent: Tuesday, December 20, 2016 2:57 AM To: John Laprise <jlaprise@gmail.com>; accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Jurisdiction Proposed Questions and Poll Results On Monday 19 December 2016 08:14 PM, John Laprise wrote: Possibilities of jurisdictional immunity? Could you please provide examples of organizations that enjoy such. John The most well known case of jurisdictional immunity is of course for organisations incorporated under international law. Unlike what has been argued here variously, although international law has to be made by governments through treaties etc that says nothing about the actual governance structure of the concerned organisation, ICANN in this case. International law can, to take an extreme case, hand over complete governance of a body created/ incorporated under international law to you and me... Nothing circumscribes how international law is written as long as all countries agree to it. It is entirely possible, and I think extremely plausible, that they would agree to write in such law the exact governance structure of ICANN as it is at present. Right now too, ICANN exists by and under the strength of its law of incorporation which is US law. In the scenario I present, it would just be international law instead of US law. Yes, there are matters to worked out in this regard, but if democracy and self-determination of all people, equally, is of any importance at all, we can go through the process, including doing the needed innovations as needed. The current international system was not handed over to us by God, it was evolved by people like us, who responded appropriately to newer and newer global challenges, as the one that faces us now. To turn ones face away and say, nothing can be done here, to evolve our democratic international systems, is to vote for a status quo which serves some, but not others. And these are the others that are protesting here, and seeking appropriate change. It is a political issue, lets not treat it as a technical issue, of what is argued to be difficult or too "troublesome" to pursue. Next, even without going the international law route, as has been said many times earlier here, US law allows even non profits to be given jurisdictional immunity. The concerned law is the United States International Organisations Immunities Act <https://archive.icann.org/en/psc/annex9.pdf> . And an example of a US non-profit being given jurisdiction immunity under it is International Fertilizer and Development Center. This has been discussed in a report commissioned by ICANN itself which can be found at https://archive.icann.org/en/psc/corell-24aug06.html . I have been unable to understand why can we not agree to even jurisdictional immunity under existing US law, which keeps ICANN in the US, preserves its existing structures, and does go considerable way to address the concerns about those who are concerned about application of US public law on ICANN, and what it may mean for its global governance work. The argument is advanced that this may affect the operation of the newly instituted community accountability mechanism. I dont think this is not true. This mechanism is a matter of internal ICANN governance system, which is a 'private' arrangement with choice of law available to it. It simply has to be put in ICANN bylaws that ICANN governance processes will be subject to adjudication by Californian courts as present. That should do. Of course the mentioned International Fertilizer and Development Centre also must be existing with some governance systems, that admit of external adjudication, even as it enjoys the benefit of jurisdictional immunity from US public laws. Such immunity always only pertains to the policy and such international core activities of the concerned organisation, and associated matters. It would not, for instance, extend to actual crime being committed by its personnel on its premises. All such matters of various distinctions get taken care of when we enter the actual processes of such immunities etc. Right now, the issue is only to decide to go down the route, or not. parminder Best regards, John Laprise, Ph.D. Consulting Scholar http://www.linkedin.com/in/jplaprise/ From: accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of parminder Sent: Monday, December 19, 2016 7:10 AM To: accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Jurisdiction Proposed Questions and Poll Results On Saturday 17 December 2016 12:40 AM, Mueller, Milton L wrote: SNIP John Laprise's wording was much, much better: "What are the advantages or disadvantages, if any, relating to changing ICANN’s jurisdiction*, particularly with regard to the actual operation of ICANN’s policies and accountability mechanisms?" This formulation does not include possibilities of jurisdictional immunity. Something like "What are the advantages or disadvantages, if any, relating to changing ICANN’s jurisdiction*, or providing possible jurisdictional immunity, particularly with regard to the actual operation of ICANN’s policies and accountability mechanisms?" would be better. parminder _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community

On Tuesday 20 December 2016 08:37 PM, John Laprise wrote:

“To turn ones face away and say, nothing can be done here, to evolve our democratic international systems, is to vote for a status quo which serves some, but not others.”

Rather, it is an acknowledgement of reality.

Apologies for appearing to be flippant, but isnt that what every status quo-ist says.

Rule of law is neither globally strong nor evenly distributed. I can imagine a world in which the way forward you describe is plausible but, regrettably, it is not the one we live in. Other systems need strengthening and in some cases even existence before the way forward is open. It’s not a vote for the status quo but a recognition of path dependency.

I am not asking for a violent deviation from the path - both options that I propose, a new international law and immunity under existing US Act carries forward the path-dependency, and completely safeguard the existing structures and processes of ICANN, the system I think you allude to as requiring strengthening. What I propose in fact further strengthens it, to a considerable extent. The ICANN system's current jurisdictional oversight by a single country is its biggest weak point in terms of international legitimacy. ( A point, unfortunately USians here seem not able to see and sympathise with.) Imagine an ICANN with immunity from US jurisdiction; how much legitimacy, and thus strength, it adds to the system.

Thanks for the back rounder Parminder. It was, along with some parallel research, quite helpful.

Thanks John, you are welcome.

The problem remains however that there is no analogous organization to ICANN merely in terms of its contractual authority.

Firstly, if we are hoping that a fully-developed, well-rounded solution, with everything fully covered by enough exact precedents, to this complex but very genuine problem, will simply one day drop in our laps, I assure you that this is not going to happen. We have to work for it, join the dots, take risks, make innovations, and so on. The point is, who is losing and gaining what from the present dispensation, and who is willing to do what is required to do. Next, I see that organisations like International Fertilizer and Development Centre, which we cited as an example of an NPO given jurisdictional immunity, also does run many projects worldwide. Any such project would require use of a legal status, entering contracts, and so on.... We just need to look into it. But if we close our eyes, and simply refuse to explore options, we are not going to get anywhere. I am not saying this example will be an exact fit for our requirement, but we need to see what is possible, and innovate and evolve over it.

I’d also add that many of the benefits of the act are at the discretion of the US Secretary of State and can be revoked.

Yes, which is why immunity under US Act is less sustainable option than international law based immunity. But still better than the present condition. In therecent civil society statement on jurisdiction <http://www.itforchange.net/sites/default/files/Jurisdiction%20of%20ICANN.pdf>, we also suggested a method whereby any such withdrawal of immunity can be made difficult/ ineffectual (see option 3 in the end).

The proposed jurisdictional immunity would also require all governments to sign off on such status, given ICANN’s reach.

I dont see why so. Only US gov needs to agree.

I know that there is a significant literature on international compacts and law. Given the often decades long time frames for the passage and acceptance of such law, the Internet as we know it is unlikely to exist by the time it comes into force.

These are weak excuses. It can be done in 6 months. But in any case, if it satisfies those who want to move towards international jurisdiction, what do you lose in allowing to set in motion the process, esp if you think it would take forever to do anything. Let those who want have it. In the interim, status quo would stay.

To your question about why we do not discuss jurisdictional immunity under US law: it is because the domestic political reality of the situation makes such an eventuality so remote as to be hypothetical.

The same domestic situation makes the continuation of ICANN under US jurisdiction even less tenable. This brings me to a very important point: the job of CCWG, working on behalf of the global community, is not to second guess what US gov will accept or not (unfortunately, that is what it has mostly done). If this was its real task, we as well may let US gov do what it may, instead of providing them the cover of legitimacy of the supposed will of the so called 'global community' which is what this process does. Our job is to recommend what we think in is best global interest, and is ordinarily plausible to do. This is what our job is, and we must just do that. Let US gov do its job - accept our recs or not. That burden is upon them - let s not take up their burden. This aspect of the work of the "community" groups involved in the transition process has always greatly bothered me. We must have clarity about - on whose behalf are we working (i think, for the global community, but you can clarify) and what our recs must be based on (I think, on our understanding of what is best for the global community, and not what we think US gov likes and would agree to, and what not, but again you can clarify)

The described quest is admirable but IMO is a non-starter. Conditions do not exist presently to make it a possible.

We are part of once in decades constitutional process about ICANN's structures. If it is not now, it is never. parminder

Best regards,

John Laprise, Ph.D.

Consulting Scholar

http://www.linkedin.com/in/jplaprise/

*From:*parminder [mailto:parminder@itforchange.net] *Sent:* Tuesday, December 20, 2016 2:57 AM *To:* John Laprise <jlaprise@gmail.com>; accountability-cross-community@icann.org *Subject:* Re: [CCWG-ACCT] Jurisdiction Proposed Questions and Poll Results

On Monday 19 December 2016 08:14 PM, John Laprise wrote:

Possibilities of jurisdictional immunity? Could you please provide examples of organizations that enjoy such.

John The most well known case of jurisdictional immunity is of course for organisations incorporated under international law. Unlike what has been argued here variously, although international law has to be made by governments through treaties etc that says nothing about the actual governance structure of the concerned organisation, ICANN in this case. International law can, to take an extreme case, hand over complete governance of a body created/ incorporated under international law to you and me... Nothing circumscribes how international law is written as long as all countries agree to it. It is entirely possible, and I think extremely plausible, that they would agree to write in such law the exact governance structure of ICANN as it is at present. Right now too, ICANN exists by and under the strength of its law of incorporation which is US law. In the scenario I present, it would just be international law instead of US law. Yes, there are matters to worked out in this regard, but if democracy and self-determination of all people, equally, is of any importance at all, we can go through the process, including doing the needed innovations as needed. The current international system was not handed over to us by God, it was evolved by people like us, who responded appropriately to newer and newer global challenges, as the one that faces us now. To turn ones face away and say, nothing can be done here, to evolve our democratic international systems, is to vote for a status quo which serves some, but not others. And these are the others that are protesting here, and seeking appropriate change. It is a political issue, lets not treat it as a technical issue, of what is argued to be difficult or too "troublesome" to pursue.

Next, even without going the international law route, as has been said many times earlier here, US law allows even non profits to be given jurisdictional immunity. The concerned law is the _United States International Organisations Immunities Act <https://archive.icann.org/en/psc/annex9.pdf>_ . And an example of a US non-profit being given jurisdiction immunity under it is/International Fertilizer and Development Center. /This has been discussed in a report commissioned by ICANN itself which can be found at https://archive.icann.org/en/psc/corell-24aug06.html .

I have been unable to understand why can we not agree to even jurisdictional immunity under existing US law, which keeps ICANN in the US, preserves its existing structures, and does go considerable way to address the concerns about those who are concerned about application of US public law on ICANN, and what it may mean for its global governance work.

The argument is advanced that this may affect the operation of the newly instituted community accountability mechanism. I dont think this is not true. This mechanism is a matter of internal ICANN governance system, which is a 'private' arrangement with choice of law available to it. It simply has to be put in ICANN bylaws that ICANN governance processes will be subject to adjudication by Californian courts as present. That should do. Of course the mentioned International Fertilizer and Development Centre also must be existing with some governance systems, that admit of external adjudication, even as it enjoys the benefit of jurisdictional immunity from US public laws. Such immunity always only pertains to the policy and such international core activities of the concerned organisation, and associated matters. It would not, for instance, extend to actual crime being committed by its personnel on its premises. All such matters of various distinctions get taken care of when we enter the actual processes of such immunities etc. Right now, the issue is only to decide to go down the route, or not.

parminder

Best regards,

John Laprise, Ph.D.

Consulting Scholar

http://www.linkedin.com/in/jplaprise/

*From:*accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] *On Behalf Of *parminder *Sent:* Monday, December 19, 2016 7:10 AM *To:* accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> *Subject:* Re: [CCWG-ACCT] Jurisdiction Proposed Questions and Poll Results

On Saturday 17 December 2016 12:40 AM, Mueller, Milton L wrote:

SNIP

John Laprise's wording was much, much better:

"What are the advantages or disadvantages, if any, relating to changing ICANN’s jurisdiction*, particularly with regard to the actual operation of ICANN’s policies and accountability mechanisms?"

This formulation does not include possibilities of jurisdictional immunity.

Something like

"What are the advantages or disadvantages, if any, relating to changing ICANN’s jurisdiction*, */or providing possible jurisdictional immunity,/* particularly with regard to the actual operation of ICANN’s policies and accountability mechanisms?"

would be better.

parminder

_______________________________________________

Accountability-Cross-Community mailing list

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Dear Kavouss You are right, we should first deal with the issue of the questionnaire. I agree, as do many others, that there is no justification to remove the proposed Q 4 from the questionnaire. The question must go out along with others. A question seeking information is only a question seeking information. People may chose to not respond to it, or give different responses, likely in opposition to one another. That is all very fine, and quite expected. But such forceful arguments to not ask for certain kinds of information is very disturbing, even alarming. (I have issues with how the other questions are framed, but I am fine to let them go out because some people want them to be posed.) Ordinarily, if a good number of participants here wanted a question, that should be enough to include it. Here, a majority of those who voted on the issue of this particular question wanted the question included. That should have conclusively stopped the debate. But no, not so. There is persistent effort to censor this question. And this in a process that is advertised as open, transparent, collaborative, and what not. There is something very basically wrong here. parminder On Thursday 22 December 2016 07:20 PM, Kavouss Arasteh wrote:

Dear John. Dear Parminder, It is difficult for me to conclude on any solution between the lines of your discussion. Could any of you kindly give a resume of the exchanged views. We need to look for some compromise solution knowing that some hard liners like x and y insist to impose their objections to send Q4.I continue to object to all questions until all 4 are agreed Nothing is agreed untill everything is agreed this is a Global multistakholder Group discussion and NOT North American Sub-Region multistakholder Group dominated by certain individuals Regards Kavouss

2016-12-22 13:06 GMT+01:00 parminder <parminder@itforchange.net <mailto:parminder@itforchange.net>>:

On Tuesday 20 December 2016 08:37 PM, John Laprise wrote:

...

“To turn ones face away and say, nothing can be done here, to evolve our democratic international systems, is to vote for a status quo which serves some, but not others.”

Rather, it is an acknowledgement of reality.

Apologies for appearing to be flippant, but isnt that what every status quo-ist says.

...

Rule of law is neither globally strong nor evenly distributed. I can imagine a world in which the way forward you describe is plausible but, regrettably, it is not the one we live in. Other systems need strengthening and in some cases even existence before the way forward is open. It’s not a vote for the status quo but a recognition of path dependency.

I am not asking for a violent deviation from the path - both options that I propose, a new international law and immunity under existing US Act carries forward the path-dependency, and completely safeguard the existing structures and processes of ICANN, the system I think you allude to as requiring strengthening. What I propose in fact further strengthens it, to a considerable extent. The ICANN system's current jurisdictional oversight by a single country is its biggest weak point in terms of international legitimacy. ( A point, unfortunately USians here seem not able to see and sympathise with.) Imagine an ICANN with immunity from US jurisdiction; how much legitimacy, and thus strength, it adds to the system.

...

Thanks for the back rounder Parminder. It was, along with some parallel research, quite helpful.

Thanks John, you are welcome.

...

The problem remains however that there is no analogous organization to ICANN merely in terms of its contractual authority.

Firstly, if we are hoping that a fully-developed, well-rounded solution, with everything fully covered by enough exact precedents, to this complex but very genuine problem, will simply one day drop in our laps, I assure you that this is not going to happen. We have to work for it, join the dots, take risks, make innovations, and so on. The point is, who is losing and gaining what from the present dispensation, and who is willing to do what is required to do.

Next, I see that organisations like International Fertilizer and Development Centre, which we cited as an example of an NPO given jurisdictional immunity, also does run many projects worldwide. Any such project would require use of a legal status, entering contracts, and so on.... We just need to look into it. But if we close our eyes, and simply refuse to explore options, we are not going to get anywhere. I am not saying this example will be an exact fit for our requirement, but we need to see what is possible, and innovate and evolve over it.

...

I’d also add that many of the benefits of the act are at the discretion of the US Secretary of State and can be revoked.

Yes, which is why immunity under US Act is less sustainable option than international law based immunity. But still better than the present condition. In therecent civil society statement on jurisdiction <http://www.itforchange.net/sites/default/files/Jurisdiction%20of%20ICANN.pdf>, we also suggested a method whereby any such withdrawal of immunity can be made difficult/ ineffectual (see option 3 in the end).

...

The proposed jurisdictional immunity would also require all governments to sign off on such status, given ICANN’s reach.

I dont see why so. Only US gov needs to agree.

...

I know that there is a significant literature on international compacts and law. Given the often decades long time frames for the passage and acceptance of such law, the Internet as we know it is unlikely to exist by the time it comes into force.

These are weak excuses. It can be done in 6 months. But in any case, if it satisfies those who want to move towards international jurisdiction, what do you lose in allowing to set in motion the process, esp if you think it would take forever to do anything. Let those who want have it. In the interim, status quo would stay.

...

To your question about why we do not discuss jurisdictional immunity under US law: it is because the domestic political reality of the situation makes such an eventuality so remote as to be hypothetical.

The same domestic situation makes the continuation of ICANN under US jurisdiction even less tenable.

This brings me to a very important point: the job of CCWG, working on behalf of the global community, is not to second guess what US gov will accept or not (unfortunately, that is what it has mostly done). If this was its real task, we as well may let US gov do what it may, instead of providing them the cover of legitimacy of the supposed will of the so called 'global community' which is what this process does. Our job is to recommend what we think in is best global interest, and is ordinarily plausible to do. This is what our job is, and we must just do that. Let US gov do its job - accept our recs or not. That burden is upon them - let s not take up their burden. This aspect of the work of the "community" groups involved in the transition process has always greatly bothered me. We must have clarity about - on whose behalf are we working (i think, for the global community, but you can clarify) and what our recs must be based on (I think, on our understanding of what is best for the global community, and not what we think US gov likes and would agree to, and what not, but again you can clarify)

...

The described quest is admirable but IMO is a non-starter. Conditions do not exist presently to make it a possible.

We are part of once in decades constitutional process about ICANN's structures. If it is not now, it is never.

parminder

...

Best regards,

John Laprise, Ph.D.

Consulting Scholar

<http://www.linkedin.com/in/jplaprise/>http://www.linkedin.com/in/jplaprise/ <http://www.linkedin.com/in/jplaprise/>

*From:*parminder [mailto:parminder@itforchange.net <mailto:parminder@itforchange.net>] *Sent:* Tuesday, December 20, 2016 2:57 AM *To:* John Laprise <jlaprise@gmail.com> <mailto:jlaprise@gmail.com>; accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> *Subject:* Re: [CCWG-ACCT] Jurisdiction Proposed Questions and Poll Results

On Monday 19 December 2016 08:14 PM, John Laprise wrote:

Possibilities of jurisdictional immunity? Could you please provide examples of organizations that enjoy such.

John The most well known case of jurisdictional immunity is of course for organisations incorporated under international law. Unlike what has been argued here variously, although international law has to be made by governments through treaties etc that says nothing about the actual governance structure of the concerned organisation, ICANN in this case. International law can, to take an extreme case, hand over complete governance of a body created/ incorporated under international law to you and me... Nothing circumscribes how international law is written as long as all countries agree to it. It is entirely possible, and I think extremely plausible, that they would agree to write in such law the exact governance structure of ICANN as it is at present. Right now too, ICANN exists by and under the strength of its law of incorporation which is US law. In the scenario I present, it would just be international law instead of US law. Yes, there are matters to worked out in this regard, but if democracy and self-determination of all people, equally, is of any importance at all, we can go through the process, including doing the needed innovations as needed. The current international system was not handed over to us by God, it was evolved by people like us, who responded appropriately to newer and newer global challenges, as the one that faces us now. To turn ones face away and say, nothing can be done here, to evolve our democratic international systems, is to vote for a status quo which serves some, but not others. And these are the others that are protesting here, and seeking appropriate change. It is a political issue, lets not treat it as a technical issue, of what is argued to be difficult or too "troublesome" to pursue.

Next, even without going the international law route, as has been said many times earlier here, US law allows even non profits to be given jurisdictional immunity. The concerned law is the _United States International Organisations Immunities Act <https://archive.icann.org/en/psc/annex9.pdf>_ . And an example of a US non-profit being given jurisdiction immunity under it is/International Fertilizer and Development Center. /This has been discussed in a report commissioned by ICANN itself which can be found at https://archive.icann.org/en/psc/corell-24aug06.html <https://archive.icann.org/en/psc/corell-24aug06.html> .

I have been unable to understand why can we not agree to even jurisdictional immunity under existing US law, which keeps ICANN in the US, preserves its existing structures, and does go considerable way to address the concerns about those who are concerned about application of US public law on ICANN, and what it may mean for its global governance work.

The argument is advanced that this may affect the operation of the newly instituted community accountability mechanism. I dont think this is not true. This mechanism is a matter of internal ICANN governance system, which is a 'private' arrangement with choice of law available to it. It simply has to be put in ICANN bylaws that ICANN governance processes will be subject to adjudication by Californian courts as present. That should do. Of course the mentioned International Fertilizer and Development Centre also must be existing with some governance systems, that admit of external adjudication, even as it enjoys the benefit of jurisdictional immunity from US public laws. Such immunity always only pertains to the policy and such international core activities of the concerned organisation, and associated matters. It would not, for instance, extend to actual crime being committed by its personnel on its premises. All such matters of various distinctions get taken care of when we enter the actual processes of such immunities etc. Right now, the issue is only to decide to go down the route, or not.

parminder

Best regards,

John Laprise, Ph.D.

Consulting Scholar

http://www.linkedin.com/in/jplaprise/ <http://www.linkedin.com/in/jplaprise/>

*From:*accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org>] *On Behalf Of *parminder *Sent:* Monday, December 19, 2016 7:10 AM *To:* accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> *Subject:* Re: [CCWG-ACCT] Jurisdiction Proposed Questions and Poll Results

On Saturday 17 December 2016 12:40 AM, Mueller, Milton L wrote:

SNIP

John Laprise's wording was much, much better:

"What are the advantages or disadvantages, if any, relating to changing ICANN’s jurisdiction*, particularly with regard to the actual operation of ICANN’s policies and accountability mechanisms?"

This formulation does not include possibilities of jurisdictional immunity.

Something like

"What are the advantages or disadvantages, if any, relating to changing ICANN’s jurisdiction*, */or providing possible jurisdictional immunity,/* particularly with regard to the actual operation of ICANN’s policies and accountability mechanisms?"

would be better.

parminder

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Dear CCWG-colleagues, After reading some comments in this email thread, I must admit to be really disappointed. Some of our colleagues in the CCWG seem to have forgotten - perhaps on purpose - that the topic of jurisdiction was allocated to WS2 as a result of a postponement, since the majority of this group thought it was not appropriate to deal with it in the pre-transition period due to time constraints. My government was not in favor of postponing the discussion on jurisdiction, as we consider it was – and remains – a fundamental aspect of a new ICANN truly governed by the multistakeholder community without any pre-conditions, but in respect to the viewpoint of the other colleagues, we agreed to move it to WS2. Now that time has come to properly deal with this topic, it is quite frustrating to notice that some participants insist on limiting and/or procrastinating this debate, including by using the absurd argument that any discussion around jurisdiction cannot put into question any aspect already decided in WS1, which is embedded in the California law. We cannot see good faith in that kind of circular argument. In our view, the discussion around the inclusion or exclusion of Q.4 shows quite clearly that some of those who have fiercely objected to any jurisdiction debate during WS1 are maintaining their objection in WS2 as well. On that particular topic (Q.4) we concur with the view that upon deciding on institutional arrangements we should not only consider already occurred cases but also take into account logically strong possibilities. The responses to the questionnaire should thus help us to deal with all possibilities associate to jurisdiction. In case any unsubstantiated opinion will be received, it should be summarily discarded.

From the various jurisdiction calls it became quite evident that a substantial part of the subgroup - mainly non-US - has great interest in examining and debating ways through which we can make sure that any issue associated to jurisdiction be addressed in a way compatible with the company's international remit of coordinating Internet public identifiers. In that context, I would like to highlight my government´s understanding that although the proposed questionnaire under discussion may provide us with some relevant factual information, it does not in any way cover all aspects of interest. We would like to refer, for example, to the list of issues compiled by Kavouss Arasteh as per his 13 December 2016 e-mail. We would also refer to questions that have continuously been asked by Parminder, apparently without any satisfactory answer. Those issues and questions include, for example, dispute settlement related topics, which demonstrates, in our view, that jurisdiction cannot be seen purely from businesses´ viewpoint. As someone has stated, we also need to look at the relationship between ICANN and third parties and adequately consider non-contracted Parties that might be affected by ICANN´s acts and/or omissions. From the perspective of the Brazilian government, the topics raised by Kavouss, Parminder and others are issues of particular interest which, needless to say, will not be adequately addressed through the mere analysis of the answers provided to the questionnaire, whether it includes Q.4 or not. My government has expressed its interest in pursuing discussion on jurisdiction through those angles many times – both during the IANA transition process and well before that. Other governments have done the same, as well as a sound number of civil society organizations around the globe. The "NETmundial Multistakeholder Statement", while calling for the internationalization of ICANN, clearly expresses this as well. Let me emphasize, by the way, that the NETmundial Statement calls for ICANN´s internationalization and not for it to become an intergovernmental organization. Those are two different notions that should not be confounded.

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

Dear All, 1.Dear Pedro, Thank you very much for your compréhensive analysis and valuable argument as well as your vision on the fundamental and crucial issue of Jurisdiction. As a Iran GAC Member I fully and wholeheartedly support that. 2.Dear Sam, While I agree with the most of your views but I have certain difficultés to isolate the Jurisdiction from the WS 2 Process due to the fact that the process will be failed if the Jurisdiction issues is not properly dealt with. 3.Dear Grec Please kindly listen and hear all these objections to the multistakeholder of on single sub region that radically against the issue of Q4and just ignor views of their own even tough they may be relatively numerous but still not representing the Global Multistakeholder 4. Dear Co-Chairs, You need to get out from silence and inattention .We have elected you to guide this process. Other rapporteurs are SELF NOMINATED and NOT ELECTED . Merry Christmas AND happy New Year Kavouss 2016-12-24 16:35 GMT+01:00 Sam Lanfranco <sam@lanfranco.net>:

I may be an isolated outlier here with regard to how to approach the core issue of jurisdiction within this CCWG, but I will state my view in as few words as possible. Jurisdiction will remain a major issue whether this CCWG includes, or excludes, jurisdiction as a question on its questionnaire, and whether or not it tries to address the issue of jurisdiction within this CCWG’s deliberations.

In many ways ICANN is a new form hybrid organization, with its multistakeholder policy making process, and with its global DNS policy remit. The jurisdiction issues run both wide and deep, and are not issues of simply finding the right “residence” for ICANN. They are about how do we (all stakeholders including governments) figure out how to handle the jurisdiction related issues posed by ICANN’s multistakeholder policy making structures, and its global DNS policy remit. What lessons can we drawn on from experience, and what needs to be cut from whole cloth (i.e., innovated)?

While I have no objections to jurisdiction being addressed inside this Accountability CCWG, I do not see this CCWG as an adequate venue for such an important issue. The work required to address it properly means that such a dialogue should take place in a venue (CCWG, whatever) devoted specifically to the jurisdiction issue. This CCWG could start the process by recognizing that, stating that the issue warrants its own CCWG (or whatever), and pressing for rapid movement in that direction. I could elaborate on each of the above points but I hope that the message is pretty clear. The rationale for such an approach almost self-evident.

Sam Lanfranco, NPOC/csih

On 12/24/2016 9:53 AM, Pedro Ivo Ferraz da Silva wrote:

Dear CCWG-colleagues,

After reading some comments in this email thread, I must admit to be really disappointed.

Some of our colleagues in the CCWG seem to have forgotten - perhaps on purpose - that the topic of jurisdiction was allocated to WS2 as a result of a postponement, since the majority of this group thought it was not appropriate to deal with it in the pre-transition period due to time constraints. My government was not in favor of postponing the discussion on jurisdiction, as we consider it was – and remains – a fundamental aspect of a new ICANN truly governed by the multistakeholder community without any pre-conditions, but in respect to the viewpoint of the other colleagues, we agreed to move it to WS2.

Now that time has come to properly deal with this topic, it is quite frustrating to notice that some participants insist on limiting and/or procrastinating this debate, including by using the absurd argument that any discussion around jurisdiction cannot put into question any aspect already decided in WS1, which is embedded in the California law. We cannot see good faith in that kind of circular argument.

In our view, the discussion around the inclusion or exclusion of Q.4 shows quite clearly that some of those who have fiercely objected to any jurisdiction debate during WS1 are maintaining their objection in WS2 as well. On that particular topic (Q.4) we concur with the view that upon deciding on institutional arrangements we should not only consider already occurred cases but also take into account logically strong possibilities. The responses to the questionnaire should thus help us to deal with all possibilities associate to jurisdiction. In case any unsubstantiated opinion will be received, it should be summarily discarded.

From the various jurisdiction calls it became quite evident that a substantial part of the subgroup - mainly non-US - has great interest in examining and debating ways through which we can make sure that any issue associated to jurisdiction be addressed in a way compatible with the company's international remit of coordinating Internet public identifiers. In that context, I would like to highlight my government´s understanding that although the proposed questionnaire under discussion may provide us with some relevant factual information, it does not in any way cover all aspects of interest. We would like to refer, for example, to the list of issues compiled by Kavouss Arasteh as per his 13 December 2016 e-mail. We would also refer to questions that have continuously been asked by Parminder, apparently without any satisfactory answer. Those issues and questions include, for example, dispute settlement related topics, which demonstrates, in our view, that jurisdiction cannot be seen purely from businesses´ viewpoint. As someone has stated, we also need to look at the relationship between ICANN and third parties and adequately consider non-contracted Parties that might be affected by ICANN´s acts and/or omissions.

From the perspective of the Brazilian government, the topics raised by Kavouss, Parminder and others are issues of particular interest which, needless to say, will not be adequately addressed through the mere analysis of the answers provided to the questionnaire, whether it includes Q.4 or not. My government has expressed its interest in pursuing discussion on jurisdiction through those angles many times – both during the IANA transition process and well before that. Other governments have done the same, as well as a sound number of civil society organizations around the globe. The "NETmundial Multistakeholder Statement", while calling for the internationalization of ICANN, clearly expresses this as well. Let me emphasize, by the way, that the NETmundial Statement calls for ICANN´s internationalization and not for it to become an intergovernmental organization. Those are two different notions that should not be confounded.

If this subgroup fails to deal with the multidimensional issues associated to jurisdiction properly , it may be applauded by some segments , but it will not contribute to putting in place a framework that will ensure the shared goal of making ICANN a legitimate entity in the eyes of all stakeholders, including governments. To achieve that, no issues should be discarded as "non important" or "not yet verified". While preserving the essence of what was achieved in WS1, innovative thinking, including on the part of persons with legal expertise, will be needed. Is it worth to wipe an important debate under the carpet just to comfort one or a few stakeholder groups while discontenting others? What kind of legitimacy is such a biased and limited exercise likely to have within the international community? .

It is time the subgroup - including the coChairs - make a honest assessment of the various viewpoints related to ICANN's jurisdiction and conduct the debate as openly as possible in order to address all the concerns and interests behind it.

Kind regards,

Sec. Pedro Ivo Ferraz da Silva Division of Information Society Ministry of Foreign Affairs - Brazil T: +55 61 2030-6609 <+55%2061%202030-6609> ------------------------------

<rest deleted>

_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community

With respect, Marilyn, I would not support the creation of such a stand-alone jurisdiction CCWG as it would only elevate, extend and further inflame a debate that cannot end in consensus agreement, as there is a fundamental incompatibility between altering ICANN's status as California non-profit and effectively exercising the empowered community accountability powers that accompanied the IANA transition and were designed to operate within that specific legal framework. We don't need global legal expertise to understand that basic point. Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/Cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Marilyn Cade Sent: Saturday, December 24, 2016 12:19 PM To: Sam Lanfranco; accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] RES: Jurisdiction Proposed Questions and Poll Results I support Sam's suggestion that a separate CCWG [or something] address the core issue of jurisdiction. I spent 3 years and many hours [many, many hours] with a reflection of a deputy SecGen of the UN during the President's Strategy Working Group. I had access to international legal advice. So, it did not matter what I "thought". It mattered what was actually an international legal perspective. I think we need to understand that opinions matter but this is a highly legal issue and we cannot short cut it by taking opinions. I support Sam's suggestion. Such a sub group or new group could then advise into the CCWG. BUT, really global legal expertise matters here. M ________________________________ From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> <accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>> on behalf of Sam Lanfranco <sam@lanfranco.net<mailto:sam@lanfranco.net>> Sent: Saturday, December 24, 2016 10:35 AM To: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] RES: Jurisdiction Proposed Questions and Poll Results I may be an isolated outlier here with regard to how to approach the core issue of jurisdiction within this CCWG, but I will state my view in as few words as possible. Jurisdiction will remain a major issue whether this CCWG includes, or excludes, jurisdiction as a question on its questionnaire, and whether or not it tries to address the issue of jurisdiction within this CCWG's deliberations. In many ways ICANN is a new form hybrid organization, with its multistakeholder policy making process, and with its global DNS policy remit. The jurisdiction issues run both wide and deep, and are not issues of simply finding the right "residence" for ICANN. They are about how do we (all stakeholders including governments) figure out how to handle the jurisdiction related issues posed by ICANN's multistakeholder policy making structures, and its global DNS policy remit. What lessons can we drawn on from experience, and what needs to be cut from whole cloth (i.e., innovated)? While I have no objections to jurisdiction being addressed inside this Accountability CCWG, I do not see this CCWG as an adequate venue for such an important issue. The work required to address it properly means that such a dialogue should take place in a venue (CCWG, whatever) devoted specifically to the jurisdiction issue. This CCWG could start the process by recognizing that, stating that the issue warrants its own CCWG (or whatever), and pressing for rapid movement in that direction. I could elaborate on each of the above points but I hope that the message is pretty clear. The rationale for such an approach almost self-evident. Sam Lanfranco, NPOC/csih On 12/24/2016 9:53 AM, Pedro Ivo Ferraz da Silva wrote: Dear CCWG-colleagues, After reading some comments in this email thread, I must admit to be really disappointed. Some of our colleagues in the CCWG seem to have forgotten - perhaps on purpose - that the topic of jurisdiction was allocated to WS2 as a result of a postponement, since the majority of this group thought it was not appropriate to deal with it in the pre-transition period due to time constraints. My government was not in favor of postponing the discussion on jurisdiction, as we consider it was - and remains - a fundamental aspect of a new ICANN truly governed by the multistakeholder community without any pre-conditions, but in respect to the viewpoint of the other colleagues, we agreed to move it to WS2. Now that time has come to properly deal with this topic, it is quite frustrating to notice that some participants insist on limiting and/or procrastinating this debate, including by using the absurd argument that any discussion around jurisdiction cannot put into question any aspect already decided in WS1, which is embedded in the California law. We cannot see good faith in that kind of circular argument. In our view, the discussion around the inclusion or exclusion of Q.4 shows quite clearly that some of those who have fiercely objected to any jurisdiction debate during WS1 are maintaining their objection in WS2 as well. On that particular topic (Q.4) we concur with the view that upon deciding on institutional arrangements we should not only consider already occurred cases but also take into account logically strong possibilities. The responses to the questionnaire should thus help us to deal with all possibilities associate to jurisdiction. In case any unsubstantiated opinion will be received, it should be summarily discarded.

From the various jurisdiction calls it became quite evident that a substantial part of the subgroup - mainly non-US - has great interest in examining and debating ways through which we can make sure that any issue associated to jurisdiction be addressed in a way compatible with the company's international remit of coordinating Internet public identifiers. In that context, I would like to highlight my government´s understanding that although the proposed questionnaire under discussion may provide us with some relevant factual information, it does not in any way cover all aspects of interest. We would like to refer, for example, to the list of issues compiled by Kavouss Arasteh as per his 13 December 2016 e-mail. We would also refer to questions that have continuously been asked by Parminder, apparently without any satisfactory answer. Those issues and questions include, for example, dispute settlement related topics, which demonstrates, in our view, that jurisdiction cannot be seen purely from businesses´ viewpoint. As someone has stated, we also need to look at the relationship between ICANN and third parties and adequately consider non-contracted Parties that might be affected by ICANN´s acts and/or omissions. From the perspective of the Brazilian government, the topics raised by Kavouss, Parminder and others are issues of particular interest which, needless to say, will not be adequately addressed through the mere analysis of the answers provided to the questionnaire, whether it includes Q.4 or not. My government has expressed its interest in pursuing discussion on jurisdiction through those angles many times - both during the IANA transition process and well before that. Other governments have done the same, as well as a sound number of civil society organizations around the globe. The "NETmundial Multistakeholder Statement", while calling for the internationalization of ICANN, clearly expresses this as well. Let me emphasize, by the way, that the NETmundial Statement calls for ICANN´s internationalization and not for it to become an intergovernmental organization. Those are two different notions that should not be confounded.

If this subgroup fails to deal with the multidimensional issues associated to jurisdiction properly , it may be applauded by some segments , but it will not contribute to putting in place a framework that will ensure the shared goal of making ICANN a legitimate entity in the eyes of all stakeholders, including governments. To achieve that, no issues should be discarded as "non important" or "not yet verified". While preserving the essence of what was achieved in WS1, innovative thinking, including on the part of persons with legal expertise, will be needed. Is it worth to wipe an important debate under the carpet just to comfort one or a few stakeholder groups while discontenting others? What kind of legitimacy is such a biased and limited exercise likely to have within the international community? . It is time the subgroup - including the coChairs - make a honest assessment of the various viewpoints related to ICANN's jurisdiction and conduct the debate as openly as possible in order to address all the concerns and interests behind it. Kind regards, Sec. Pedro Ivo Ferraz da Silva Division of Information Society Ministry of Foreign Affairs - Brazil T: +55 61 2030-6609 ________________________________ <rest deleted> ________________________________ No virus found in this message. Checked by AVG - www.avg.com<http://www.avg.com> Version: 2016.0.7924 / Virus Database: 4739/13633 - Release Date: 12/22/16

Dear All, I strongly oppose to A) To separate Jurisdiction from WORK Stream 2 B) To create a New Group due to the fact that this is not the old or new group which has or will not have problem . The issue is one or perhaps twop countries with their relative strong participation blocking every thing as they want NO CHANGE This is a bad advice Kavouss 2016-12-24 19:24 GMT+01:00 Nigel Roberts <nigel@channelisles.net>:

Marilyn

It didn't matter in WS1 when bylaws were written using legal terms-of-art without understanding what they means, and then WS2 sub-groups set up to determine what the true construction of the terms already adopted were . .

But I agree with your last sentence.

...

I support Sam's suggestion. Such a sub group or new group could then advise into the CCWG.

BUT, really global legal expertise matters here.

M

ter ------------------------------------------------------------------------ *From:* accountability-cross-community-bounces@icann.org <accountability-cross-community-bounces@icann.org> on behalf of Sam Lanfranco <sam@lanfranco.net> *Sent:* Saturday, December 24, 2016 10:35 AM *To:* accountability-cross-community@icann.org *Subject:* Re: [CCWG-ACCT] RES: Jurisdiction Proposed Questions and Poll

Results

I may be an isolated outlier here with regard to how to approach the core issue of jurisdiction within this CCWG, but I will state my view in as few words as possible. Jurisdiction will remain a major issue whether this CCWG includes, or excludes, jurisdiction as a question on its questionnaire, and whether or not it tries to address the issue of jurisdiction within this CCWG’s deliberations.

In many ways ICANN is a new form hybrid organization, with its multistakeholder policy making process, and with its global DNS policy remit. The jurisdiction issues run both wide and deep, and are not issues of simply finding the right “residence” for ICANN. They are about how do we (all stakeholders including governments) figure out how to handle the jurisdiction related issues posed by ICANN’s multistakeholder policy making structures, and its global DNS policy remit. What lessons can we drawn on from experience, and what needs to be cut from whole cloth (i.e., innovated)?

While I have no objections to jurisdiction being addressed inside this Accountability CCWG, I do not see this CCWG as an adequate venue for such an important issue. The work required to address it properly means that such a dialogue should take place in a venue (CCWG, whatever) devoted specifically to the jurisdiction issue. This CCWG could start the process by recognizing that, stating that the issue warrants its own CCWG (or whatever), and pressing for rapid movement in that direction. I could elaborate on each of the above points but I hope that the message is pretty clear. The rationale for such an approach almost self-evident.

Sam Lanfranco, NPOC/csih

On 12/24/2016 9:53 AM, Pedro Ivo Ferraz da Silva wrote:

...

Dear CCWG-colleagues,

After reading some comments in this email thread, I must admit to be really disappointed.

Some of our colleagues in the CCWG seem to have forgotten - perhaps on purpose - that the topic of jurisdiction was allocated to WS2 as a result of a postponement, since the majority of this group thought it was not appropriate to deal with it in the pre-transition period due to time constraints. My government was not in favor of postponing the discussion on jurisdiction, as we consider it was – and remains – a fundamental aspect of a new ICANN truly governed by the multistakeholder community without any pre-conditions, but in respect to the viewpoint of the other colleagues, we agreed to move it to WS2.

Now that time has come to properly deal with this topic, it is quite frustrating to notice that some participants insist on limiting and/or procrastinating this debate, including by using the absurd argument that any discussion around jurisdiction cannot put into question any aspect already decided in WS1, which is embedded in the California law. We cannot see good faith in that kind of circular argument.

In our view, the discussion around the inclusion or exclusion of Q.4 shows quite clearly that some of those who have fiercely objected to any jurisdiction debate during WS1 are maintaining their objection in WS2 as well. On that particular topic (Q.4) we concur with the view that upon deciding on institutional arrangements we should not only consider already occurred cases but also take into account logically strong possibilities. The responses to the questionnaire should thus help us to deal with all possibilities associate to jurisdiction. In case any unsubstantiated opinion will be received, it should be summarily discarded.

From the various jurisdiction calls it became quite evident that a substantial part of the subgroup - mainly non-US - has great interest in examining and debating ways through which we can make sure that any issue associated to jurisdiction be addressed in a way compatible with the company's international remit of coordinating Internet public identifiers. In that context, I would like to highlight my government´s understanding that although the proposed questionnaire under discussion may provide us with some relevant factual information, it does not in any way cover all aspects of interest. We would like to refer, for example, to the list of issues compiled by Kavouss Arasteh as per his 13 December 2016 e-mail. We would also refer to questions that have continuously been asked by Parminder, apparently without any satisfactory answer. Those issues and questions include, for example, dispute settlement related topics, which demonstrates, in our view, that jurisdiction cannot be seen purely from businesses´ viewpoint. As someone has stated, we also need to look at the relationship between ICANN and third parties and adequately consider non-contracted Parties that might be affected by ICANN´s acts and/or omissions.

From the perspective of the Brazilian government, the topics raised by Kavouss, Parminder and others are issues of particular interest which, needless to say, will not be adequately addressed through the mere analysis of the answers provided to the questionnaire, whether it includes Q.4 or not.

My government has expressed its interest in pursuing discussion on jurisdiction through those angles many times – both during the IANA transition process and well before that. Other governments have done the same, as well as a sound number of civil society organizations around the globe. The "NETmundial Multistakeholder Statement", while calling for the internationalization of ICANN, clearly expresses this as well. Let me emphasize, by the way, that the NETmundial Statement calls for ICANN´s internationalization and not for it to become an intergovernmental organization. Those are two different notions that should not be confounded.

If this subgroup fails to deal with the multidimensional issues associated to jurisdiction properly , it may be applauded by some segments , but it will not contribute to putting in place a framework that will ensure the shared goal of making ICANN a legitimate entity in the eyes of all stakeholders, including governments. To achieve that, no issues should be discarded as "non important" or "not yet verified". While preserving the essence of what was achieved in WS1, innovative thinking, including on the part of persons with legal expertise, will be needed. Is it worth to wipe an important debate under the carpet just to comfort one or a few stakeholder groups while discontenting others? What kind of legitimacy is such a biased and limited exercise likely to have within the international community? .

It is time the subgroup - including the coChairs - make a honest assessment of the various viewpoints related to ICANN's jurisdiction and conduct the debate as openly as possible in order to address all the concerns and interests behind it.

Kind regards,

Sec. Pedro Ivo Ferraz da Silva Division of Information Society Ministry of Foreign Affairs - Brazil T: +55 61 2030-6609 ------------------------------------------------------------------------

<rest deleted>

_______________________________________________ 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

With all due respect I wonder about an argument that builds on rhetorical accusations such as bait and switch. We all should know that there is no way ICANN is moving out of CA, despite those who might like to see that. Personally I see a greater chance of California seceding from the US than of the ICANN EC deciding to support an improbable change in the location of the home office. Despite that, there may be issues and there may be remedies for those issues. The fact that some will go to such rhetorical extent to disallow questions and solution exploration is baffling. avri On 24-Dec-16 12:46, Phil Corwin wrote:

Fellow jurisdiction subgroup members:

I am responding as someone who did not fiercely object to completing the jurisdiction debate in WS1. Indeed, I publicly wrote in May 2016 that ICANN’s permanent status as a US-based non-profit corporation should be enshrined in a Fundamental Bylaw prior to the completion of WS1 (http://www.circleid.com/posts/20160523_the_irritating_irresolution_of_icann_... ):

…even as the transition draws closer, ICANN's continued status as a non-profit corporation subject to U.S. law — its jurisdictional locus — is rapidly replacing the IANA contract as the new focus for displeasure by those who would have ICANN relocate to another jurisdiction — or even be transformed into a multilateral international intergovernmental organization (IGO), an outcome specifically prohibited under NTIA's approval criteria. The resolution of this extended debate will have profound ramifications for the future viability of the MSM of Internet Governance (IG), as well as for Internet speech free from governmental interference exercised from the top level of the domain name system (DNS). Until this matter is resolved with finality it will remain a scab to be constantly picked at, always threatening to become a festering sore on the body politic of IG.

…several proposed revisions of ICANN's Bylaws enmesh it more deeply within ICANN's framework of California nonprofit business association law, and thereby U.S. jurisdiction. At the same time, rather than logically and decisively resolving the question of ICANN's permanent grounding in U.S. jurisdiction and law, the CCWG-ACCT kicked the can down the road by retaining the issue of jurisdiction as a matter to be further addressed in WS2, without in any decisive way limiting what jurisdictional matters remained to be settled by taking ICANN's own jurisdictional locus off the table.

For the sake of legal clarity and organizational stability, it is incumbent upon WS2 participants to resolve this matter as soon as feasible — and to come down decisively in favor of a permanent link between ICANN and U.S. jurisdiction…*It is most unfortunate that WS1 did not resolve the critical matter of ICANN jurisdiction. The only way to ensure that ICANN does not devolve into an IGO is to enshrine ICANN's permanent status as a California non-profit in a Fundamental Bylaw during the course of WS2. That would not only be consistent with one of NTIA's key principles but is the only means to assure that business, civil society, and the technical and academic sectors remain the stakeholders in charge of the critical root zone functions — rather than have them fall under the sway of governments, with all the dangers that would accompany a future transition of ICANN's status from the MSM to an IGO.*

I restated that position orally at the Helsinki “lightning round”, and was instantly called out as someone seeking to initiate upheaval and derail the transition. But I believe that my warning is now being borne out.

Because now we are seeing the festering sore manifest itself in the workings of this subgroup. And the reason there is such substantial resistance to reopening the most fundamental jurisdictional matters through open-ended, opinion (not fact) seeking questions is not just a sense that this is an attempt to stage a huge bait-and-switch for a transition the U.S. acquiesced to on the basis of ICANN remaining a California non-profit and not becoming an IGO dominated by governments, but that it threatens to undo all of the accountability measures so carefully developed in WS1. As Thomas, Leon & Mathieu stated in their email of December 22^nd :

…the subgroup must keep in mind that having ICANN move its place of incorporation materially means dismantling the accountability framework of WS1. Indeed, it could mean dismantling ICANN as we know it and building a new organization from the ground up, hence the difficulty in implementing such a task without huge risks around it.

So far as I am concerned, this subgroup can ask whatever questions it wants of anyone it wishes. But let it be clear that any attempt to recommend a change in ICANN’s organizational jurisdiction that removes it from California legal framework, much less one that seeks to grant it jurisdictional immunity akin to that of an IGO, advanced just months after the occurrence of the transition and with no intervening event or problem justifying exploration of such a radical alteration, will be regarded as an attempt to dismantle the accountability framework and will be responded to as befits such a fundamental threat to all we have achieved.

Happy holidays,

Philip

*Philip S. Corwin, Founding Principal*

*Virtualaw LLC*

*1155 F Street, NW*

*Suite 1050*

*Washington, DC 20004*

*202-559-8597/Direct*

*202-559-8750/Fax*

*202-255-6172/Cell***

* *

*Twitter: @VlawDC*

*/"Luck is the residue of design" -- Branch Rickey/*

*From:*accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] *On Behalf Of *Pedro Ivo Ferraz da Silva *Sent:* Saturday, December 24, 2016 9:53 AM *To:* parminder; Kavouss Arasteh; Greg Shatan *Cc:* accountability-cross-community@icann.org *Subject:* [CCWG-ACCT] RES: Jurisdiction Proposed Questions and Poll Results

Dear CCWG-colleagues,

After reading some comments in this email thread, I must admit to be really disappointed.

Some of our colleagues in the CCWG seem to have forgotten - perhaps on purpose - that the topic of jurisdiction was allocated to WS2 as a result of a postponement, since the majority of this group thought it was not appropriate to deal with it in the pre-transition period due to time constraints. My government was not in favor of postponing the discussion on jurisdiction, as we consider it was – and remains – a fundamental aspect of a new ICANN truly governed by the multistakeholder community without any pre-conditions, but in respect to the viewpoint of the other colleagues, we agreed to move it to WS2.

Now that time has come to properly deal with this topic, it is quite frustrating to notice that some participants insist on limiting and/or procrastinating this debate, including by using the absurd argument that any discussion around jurisdiction cannot put into question any aspect already decided in WS1, which is embedded in the California law. We cannot see good faith in that kind of circular argument.

In our view, the discussion around the inclusion or exclusion of Q.4 shows quite clearly that some of those who have fiercely objected to any jurisdiction debate during WS1 are maintaining their objection in WS2 as well. On that particular topic (Q.4) we concur with the view that upon deciding on institutional arrangements we should not only consider already occurred cases but also take into account logically strong possibilities. The responses to the questionnaire should thus help us to deal with all possibilities associate to jurisdiction. In case any unsubstantiated opinion will be received, it should be summarily discarded.

From the various jurisdiction calls it became quite evident that a substantial part of the subgroup - mainly non-US - has great interest in examining and debating ways through which we can make sure that any issue associated to jurisdiction be addressed in a way compatible with the company's international remit of coordinating Internet public identifiers. In that context, I would like to highlight my government´s understanding that although the proposed questionnaire under discussion may provide us with some relevant factual information, it does not in any way cover all aspects of interest. We would like to refer, for example, to the list of issues compiled by Kavouss Arasteh as per his 13 December 2016 e-mail. We would also refer to questions that have continuously been asked by Parminder, apparently without any satisfactory answer. Those issues and questions include, for example, dispute settlement related topics, which demonstrates, in our view, that jurisdiction cannot be seen purely from businesses´ viewpoint. As someone has stated, we also need to look at the relationship between ICANN and third parties and adequately consider non-contracted Parties that might be affected by ICANN´s acts and/or omissions.

From the perspective of the Brazilian government, the topics raised by Kavouss, Parminder and others are issues of particular interest which, needless to say, will not be adequately addressed through the mere analysis of the answers provided to the questionnaire, whether it includes Q.4 or not.

My government has expressed its interest in pursuing discussion on jurisdiction through those angles many times – both during the IANA transition process and well before that. Other governments have done the same, as well as a sound number of civil society organizations around the globe. The "NETmundial Multistakeholder Statement", while calling for the internationalization of ICANN, clearly expresses this as well. Let me emphasize, by the way, that the NETmundial Statement calls for ICANN´s internationalization and not for it to become an intergovernmental organization. Those are two different notions that should not be confounded.

If this subgroup fails to deal with the multidimensional issues associated to jurisdiction properly , it may be applauded by some segments , but it will not contribute to putting in place a framework that will ensure the shared goal of making ICANN a legitimate entity in the eyes of all stakeholders, including governments. To achieve that, no issues should be discarded as "non important" or "not yet verified". While preserving the essence of what was achieved in WS1, innovative thinking, including on the part of persons with legal expertise, will be needed. Is it worth to wipe an important debate under the carpet just to comfort one or a few stakeholder groups while discontenting others? What kind of legitimacy is such a biased and limited exercise likely to have within the international community? .

It is time the subgroup - including the coChairs - make a honest assessment of the various viewpoints related to ICANN's jurisdiction and conduct the debate as openly as possible in order to address all the concerns and interests behind it.

Kind regards,

Sec. Pedro Ivo Ferraz da Silva

Division of Information Society

Ministry of Foreign Affairs - Brazil

T: +55 61 2030-6609

------------------------------------------------------------------------

*De:*accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> [accountability-cross-community-bounces@icann.org] em nome de parminder [parminder@itforchange.net] *Enviado:* quinta-feira, 22 de dezembro de 2016 14:01 *Para:* Kavouss Arasteh; Greg Shatan *Cc:* accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> *Assunto:* Re: [CCWG-ACCT] Jurisdiction Proposed Questions and Poll Results

Dear Kavouss

You are right, we should first deal with the issue of the questionnaire.

I agree, as do many others, that there is no justification to remove the proposed Q 4 from the questionnaire. The question must go out along with others.

A question seeking information is only a question seeking information. People may chose to not respond to it, or give different responses, likely in opposition to one another. That is all very fine, and quite expected. But such forceful arguments to not ask for certain kinds of information is very disturbing, even alarming. (I have issues with how the other questions are framed, but I am fine to let them go out because some people want them to be posed.)

Ordinarily, if a good number of participants here wanted a question, that should be enough to include it. Here, a majority of those who voted on the issue of this particular question wanted the question included. That should have conclusively stopped the debate. But no, not so. There is persistent effort to censor this question. And this in a process that is advertised as open, transparent, collaborative, and what not. There is something very basically wrong here.

parminder

On Thursday 22 December 2016 07:20 PM, Kavouss Arasteh wrote:

Dear John.

Dear Parminder,

It is difficult for me to conclude on any solution between the lines of your discussion.

Could any of you kindly give a resume of the exchanged views.

We need to look for some compromise solution knowing that some hard liners like x and y insist to impose their objections to send Q4.I continue to object to all questions until all 4 are agreed

Nothing is agreed untill everything is agreed

this is a Global multistakholder Group discussion and NOT North American Sub-Region multistakholder Group dominated by certain individuals

Regards

Kavouss

2016-12-22 13:06 GMT+01:00 parminder <parminder@itforchange.net <mailto:parminder@itforchange.net>>:

On Tuesday 20 December 2016 08:37 PM, John Laprise wrote:

“To turn ones face away and say, nothing can be done here, to evolve our democratic international systems, is to vote for a status quo which serves some, but not others.”

Rather, it is an acknowledgement of reality.

Apologies for appearing to be flippant, but isnt that what every status quo-ist says.

Rule of law is neither globally strong nor evenly distributed. I can imagine a world in which the way forward you describe is plausible but, regrettably, it is not the one we live in. Other systems need strengthening and in some cases even existence before the way forward is open. It’s not a vote for the status quo but a recognition of path dependency.

I am not asking for a violent deviation from the path - both options that I propose, a new international law and immunity under existing US Act carries forward the path-dependency, and completely safeguard the existing structures and processes of ICANN, the system I think you allude to as requiring strengthening. What I propose in fact further strengthens it, to a considerable extent. The ICANN system's current jurisdictional oversight by a single country is its biggest weak point in terms of international legitimacy. ( A point, unfortunately USians here seem not able to see and sympathise with.) Imagine an ICANN with immunity from US jurisdiction; how much legitimacy, and thus strength, it adds to the system.

Thanks for the back rounder Parminder. It was, along with some parallel research, quite helpful.

Thanks John, you are welcome.

The problem remains however that there is no analogous organization to ICANN merely in terms of its contractual authority.

Firstly, if we are hoping that a fully-developed, well-rounded solution, with everything fully covered by enough exact precedents, to this complex but very genuine problem, will simply one day drop in our laps, I assure you that this is not going to happen. We have to work for it, join the dots, take risks, make innovations, and so on. The point is, who is losing and gaining what from the present dispensation, and who is willing to do what is required to do.

Next, I see that organisations like International Fertilizer and Development Centre, which we cited as an example of an NPO given jurisdictional immunity, also does run many projects worldwide. Any such project would require use of a legal status, entering contracts, and so on.... We just need to look into it. But if we close our eyes, and simply refuse to explore options, we are not going to get anywhere. I am not saying this example will be an exact fit for our requirement, but we need to see what is possible, and innovate and evolve over it.

I’d also add that many of the benefits of the act are at the discretion of the US Secretary of State and can be revoked.

Yes, which is why immunity under US Act is less sustainable option than international law based immunity. But still better than the present condition. In therecent civil society statement on jurisdiction <http://www.itforchange.net/sites/default/files/Jurisdiction%20of%20ICANN.pdf>, we also suggested a method whereby any such withdrawal of immunity can be made difficult/ ineffectual (see option 3 in the end).

The proposed jurisdictional immunity would also require all governments to sign off on such status, given ICANN’s reach.

I dont see why so. Only US gov needs to agree.

I know that there is a significant literature on international compacts and law. Given the often decades long time frames for the passage and acceptance of such law, the Internet as we know it is unlikely to exist by the time it comes into force.

These are weak excuses. It can be done in 6 months. But in any case, if it satisfies those who want to move towards international jurisdiction, what do you lose in allowing to set in motion the process, esp if you think it would take forever to do anything. Let those who want have it. In the interim, status quo would stay.

To your question about why we do not discuss jurisdictional immunity under US law: it is because the domestic political reality of the situation makes such an eventuality so remote as to be hypothetical.

The same domestic situation makes the continuation of ICANN under US jurisdiction even less tenable.

This brings me to a very important point: the job of CCWG, working on behalf of the global community, is not to second guess what US gov will accept or not (unfortunately, that is what it has mostly done). If this was its real task, we as well may let US gov do what it may, instead of providing them the cover of legitimacy of the supposed will of the so called 'global community' which is what this process does. Our job is to recommend what we think in is best global interest, and is ordinarily plausible to do. This is what our job is, and we must just do that. Let US gov do its job - accept our recs or not. That burden is upon them - let s not take up their burden. This aspect of the work of the "community" groups involved in the transition process has always greatly bothered me. We must have clarity about - on whose behalf are we working (i think, for the global community, but you can clarify) and what our recs must be based on (I think, on our understanding of what is best for the global community, and not what we think US gov likes and would agree to, and what not, but again you can clarify)

The described quest is admirable but IMO is a non-starter. Conditions do not exist presently to make it a possible.

We are part of once in decades constitutional process about ICANN's structures. If it is not now, it is never.

parminder

Best regards,

John Laprise, Ph.D.

Consulting Scholar

http://www.linkedin.com/in/jplaprise/

*From:* parminder [mailto:parminder@itforchange.net] *Sent:* Tuesday, December 20, 2016 2:57 AM *To:* John Laprise <jlaprise@gmail.com> <mailto:jlaprise@gmail.com>; accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> *Subject:* Re: [CCWG-ACCT] Jurisdiction Proposed Questions and Poll Results

On Monday 19 December 2016 08:14 PM, John Laprise wrote:

Possibilities of jurisdictional immunity? Could you please provide examples of organizations that enjoy such.

John The most well known case of jurisdictional immunity is of course for organisations incorporated under international law. Unlike what has been argued here variously, although international law has to be made by governments through treaties etc that says nothing about the actual governance structure of the concerned organisation, ICANN in this case. International law can, to take an extreme case, hand over complete governance of a body created/ incorporated under international law to you and me... Nothing circumscribes how international law is written as long as all countries agree to it. It is entirely possible, and I think extremely plausible, that they would agree to write in such law the exact governance structure of ICANN as it is at present. Right now too, ICANN exists by and under the strength of its law of incorporation which is US law. In the scenario I present, it would just be international law instead of US law. Yes, there are matters to worked out in this regard, but if democracy and self-determination of all people, equally, is of any importance at all, we can go through the process, including doing the needed innovations as needed. The current international system was not handed over to us by God, it was evolved by people like us, who responded appropriately to newer and newer global challenges, as the one that faces us now. To turn ones face away and say, nothing can be done here, to evolve our democratic international systems, is to vote for a status quo which serves some, but not others. And these are the others that are protesting here, and seeking appropriate change. It is a political issue, lets not treat it as a technical issue, of what is argued to be difficult or too "troublesome" to pursue.

Next, even without going the international law route, as has been said many times earlier here, US law allows even non profits to be given jurisdictional immunity. The concerned law is the _United States International Organisations Immunities Act <https://archive.icann.org/en/psc/annex9.pdf>_. And an example of a US non-profit being given jurisdiction immunity under it is/International Fertilizer and Development Center. /This has been discussed in a report commissioned by ICANN itself which can be found at https://archive.icann.org/en/psc/corell-24aug06.html .

I have been unable to understand why can we not agree to even jurisdictional immunity under existing US law, which keeps ICANN in the US, preserves its existing structures, and does go considerable way to address the concerns about those who are concerned about application of US public law on ICANN, and what it may mean for its global governance work.

The argument is advanced that this may affect the operation of the newly instituted community accountability mechanism. I dont think this is not true. This mechanism is a matter of internal ICANN governance system, which is a 'private' arrangement with choice of law available to it. It simply has to be put in ICANN bylaws that ICANN governance processes will be subject to adjudication by Californian courts as present. That should do. Of course the mentioned International Fertilizer and Development Centre also must be existing with some governance systems, that admit of external adjudication, even as it enjoys the benefit of jurisdictional immunity from US public laws. Such immunity always only pertains to the policy and such international core activities of the concerned organisation, and associated matters. It would not, for instance, extend to actual crime being committed by its personnel on its premises. All such matters of various distinctions get taken care of when we enter the actual processes of such immunities etc. Right now, the issue is only to decide to go down the route, or not.

parminder

Best regards,

John Laprise, Ph.D.

Consulting Scholar

http://www.linkedin.com/in/jplaprise/

*From:* accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] *On Behalf Of *parminder *Sent:* Monday, December 19, 2016 7:10 AM *To:* accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> *Subject:* Re: [CCWG-ACCT] Jurisdiction Proposed Questions and Poll Results

On Saturday 17 December 2016 12:40 AM, Mueller, Milton L wrote:

SNIP

John Laprise's wording was much, much better:

"What are the advantages or disadvantages, if any, relating to changing ICANN’s jurisdiction*, particularly with regard to the actual operation of ICANN’s policies and accountability mechanisms?"

This formulation does not include possibilities of jurisdictional immunity.

Something like

"What are the advantages or disadvantages, if any, relating to changing ICANN’s jurisdiction*, */or providing possible jurisdictional immunity,/* particularly with regard to the actual operation of ICANN’s policies and accountability mechanisms?"

would be better.

parminder

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Dear all, On a personal note, I am not only in strong support of Jorge's suggestion but pick it up and forge ahead. Undoubtedly, if we put focus on 'making progress', and for the consensus we are all aiming for surely all roads would lead to Rome. Wale On Sat, Dec 24, 2016 at 5:52 PM, <Jorge.Cancio@bakom.admin.ch> wrote:

Dear all

Let me express my support to many of the points made by Pedro.

At the same time, let us all try to return to a constructive and step-by-step approach, building on the progress made so far, in order to make progress on our mandate, established by the whole multistakeholder community back in Marrakech.

In this vein, and consistent with our conversation in Hyderabad, let us continue with the line directed to requesting input from the wider community.

The four questions developed so far will allow us to gather much needed input on facts, examples and well-founded opinions on the influence of ICANNs jurisdiction, taking into account its multiple layers, on its operations and accountability.

If we all are constructive and accept esch others' views as worthy of further discussion and study, we will be able to get this important step further.

Hence, let us please stay on the right track and finalize formulations of all four questions, and keep up the good spirit of cooperation.

with my best wishes for you all during the festivities

kind regards

Jorge

________________________________

Von: Pedro Ivo Ferraz da Silva <pedro.ivo@itamaraty.gov.br> Datum: 24. Dezember 2016 um 15:53:55 MEZ An: Greg Shatan <gregshatanipc@gmail.com>, parminder < parminder@itforchange.net>, Kavouss Arasteh <kavouss.arasteh@gmail.com> Cc: accountability-cross-community@icann.org <accountability-cross- community@icann.org> Betreff: [CCWG-ACCT] RES: Jurisdiction Proposed Questions and Poll Results

Dear CCWG-colleagues,

After reading some comments in this email thread, I must admit to be really disappointed.

Some of our colleagues in the CCWG seem to have forgotten - perhaps on purpose - that the topic of jurisdiction was allocated to WS2 as a result of a postponement, since the majority of this group thought it was not appropriate to deal with it in the pre-transition period due to time constraints. My government was not in favor of postponing the discussion on jurisdiction, as we consider it was – and remains – a fundamental aspect of a new ICANN truly governed by the multistakeholder community without any pre-conditions, but in respect to the viewpoint of the other colleagues, we agreed to move it to WS2.

Now that time has come to properly deal with this topic, it is quite frustrating to notice that some participants insist on limiting and/or procrastinating this debate, including by using the absurd argument that any discussion around jurisdiction cannot put into question any aspect already decided in WS1, which is embedded in the California law. We cannot see good faith in that kind of circular argument. In our view, the discussion around the inclusion or exclusion of Q.4 shows quite clearly that some of those who have fiercely objected to any jurisdiction debate during WS1 are maintaining their objection in WS2 as well. On that particular topic (Q.4) we concur with the view that upon deciding on institutional arrangements we should not only consider already occurred cases but also take into account logically strong possibilities. The responses to the questionnaire should thus help us to deal with all possibilities associate to jurisdiction. In case any unsubstantiated opinion will be received, it should be summarily discarded. From the various jurisdiction calls it became quite evident that a substantial part of the subgroup - mainly non-US - has great interest in examining and debating ways through which we can make sure that any issue associated to jurisdiction be addressed in a way compatible with the company's international remit of coordinating Internet public identifiers. In that context, I would like to highlight my government´s understanding that although the proposed questionnaire under discussion may provide us with some relevant factual information, it does not in any way cover all aspects of interest. We would like to refer, for example, to the list of issues compiled by Kavouss Arasteh as per his 13 December 2016 e-mail. We would also refer to questions that have continuously been asked by Parminder, apparently without any satisfactory answer. Those issues and questions include, for example, dispute settlement related topics, which demonstrates, in our view, that jurisdiction cannot be seen purely from businesses´ viewpoint. As someone has stated, we also need to look at the relationship between ICANN and third parties and adequately consider non-contracted Parties that might be affected by ICANN´s acts and/or omissions. From the perspective of the Brazilian government, the topics raised by Kavouss, Parminder and others are issues of particular interest which, needless to say, will not be adequately addressed through the mere analysis of the answers provided to the questionnaire, whether it includes Q.4 or not. My government has expressed its interest in pursuing discussion on jurisdiction through those angles many times – both during the IANA transition process and well before that. Other governments have done the same, as well as a sound number of civil society organizations around the globe. The "NETmundial Multistakeholder Statement", while calling for the internationalization of ICANN, clearly expresses this as well. Let me emphasize, by the way, that the NETmundial Statement calls for ICANN´s internationalization and not for it to become an intergovernmental organization. Those are two different notions that should not be confounded.

If this subgroup fails to deal with the multidimensional issues associated to jurisdiction properly , it may be applauded by some segments , but it will not contribute to putting in place a framework that will ensure the shared goal of making ICANN a legitimate entity in the eyes of all stakeholders, including governments. To achieve that, no issues should be discarded as "non important" or "not yet verified". While preserving the essence of what was achieved in WS1, innovative thinking, including on the part of persons with legal expertise, will be needed. Is it worth to wipe an important debate under the carpet just to comfort one or a few stakeholder groups while discontenting others? What kind of legitimacy is such a biased and limited exercise likely to have within the international community? .

It is time the subgroup - including the coChairs - make a honest assessment of the various viewpoints related to ICANN's jurisdiction and conduct the debate as openly as possible in order to address all the concerns and interests behind it.

Kind regards,

Sec. Pedro Ivo Ferraz da Silva Division of Information Society Ministry of Foreign Affairs - Brazil T: +55 61 2030-6609

________________________________ De: accountability-cross-community-bounces@icann.org [ accountability-cross-community-bounces@icann.org] em nome de parminder [ parminder@itforchange.net] Enviado: quinta-feira, 22 de dezembro de 2016 14:01 Para: Kavouss Arasteh; Greg Shatan Cc: accountability-cross-community@icann.org Assunto: Re: [CCWG-ACCT] Jurisdiction Proposed Questions and Poll Results

Dear Kavouss

You are right, we should first deal with the issue of the questionnaire.

I agree, as do many others, that there is no justification to remove the proposed Q 4 from the questionnaire. The question must go out along with others.

A question seeking information is only a question seeking information. People may chose to not respond to it, or give different responses, likely in opposition to one another. That is all very fine, and quite expected. But such forceful arguments to not ask for certain kinds of information is very disturbing, even alarming. (I have issues with how the other questions are framed, but I am fine to let them go out because some people want them to be posed.)

Ordinarily, if a good number of participants here wanted a question, that should be enough to include it. Here, a majority of those who voted on the issue of this particular question wanted the question included. That should have conclusively stopped the debate. But no, not so. There is persistent effort to censor this question. And this in a process that is advertised as open, transparent, collaborative, and what not. There is something very basically wrong here.

parminder

On Thursday 22 December 2016 07:20 PM, Kavouss Arasteh wrote: Dear John. Dear Parminder, It is difficult for me to conclude on any solution between the lines of your discussion. Could any of you kindly give a resume of the exchanged views. We need to look for some compromise solution knowing that some hard liners like x and y insist to impose their objections to send Q4.I continue to object to all questions until all 4 are agreed Nothing is agreed untill everything is agreed this is a Global multistakholder Group discussion and NOT North American Sub-Region multistakholder Group dominated by certain individuals Regards Kavouss

2016-12-22 13:06 GMT+01:00 parminder <parminder@itforchange.net<mailto: parminder@itforchange.net>>:

On Tuesday 20 December 2016 08:37 PM, John Laprise wrote: “To turn ones face away and say, nothing can be done here, to evolve our democratic international systems, is to vote for a status quo which serves some, but not others.”

Rather, it is an acknowledgement of reality.

Apologies for appearing to be flippant, but isnt that what every status quo-ist says. Rule of law is neither globally strong nor evenly distributed. I can imagine a world in which the way forward you describe is plausible but, regrettably, it is not the one we live in. Other systems need strengthening and in some cases even existence before the way forward is open. It’s not a vote for the status quo but a recognition of path dependency.

I am not asking for a violent deviation from the path - both options that I propose, a new international law and immunity under existing US Act carries forward the path-dependency, and completely safeguard the existing structures and processes of ICANN, the system I think you allude to as requiring strengthening. What I propose in fact further strengthens it, to a considerable extent. The ICANN system's current jurisdictional oversight by a single country is its biggest weak point in terms of international legitimacy. ( A point, unfortunately USians here seem not able to see and sympathise with.) Imagine an ICANN with immunity from US jurisdiction; how much legitimacy, and thus strength, it adds to the system.

Thanks for the back rounder Parminder. It was, along with some parallel research, quite helpful.

Thanks John, you are welcome.

The problem remains however that there is no analogous organization to ICANN merely in terms of its contractual authority.

Firstly, if we are hoping that a fully-developed, well-rounded solution, with everything fully covered by enough exact precedents, to this complex but very genuine problem, will simply one day drop in our laps, I assure you that this is not going to happen. We have to work for it, join the dots, take risks, make innovations, and so on. The point is, who is losing and gaining what from the present dispensation, and who is willing to do what is required to do.

Next, I see that organisations like International Fertilizer and Development Centre, which we cited as an example of an NPO given jurisdictional immunity, also does run many projects worldwide. Any such project would require use of a legal status, entering contracts, and so on.... We just need to look into it. But if we close our eyes, and simply refuse to explore options, we are not going to get anywhere. I am not saying this example will be an exact fit for our requirement, but we need to see what is possible, and innovate and evolve over it.

I’d also add that many of the benefits of the act are at the discretion of the US Secretary of State and can be revoked.

Yes, which is why immunity under US Act is less sustainable option than international law based immunity. But still better than the present condition. In the recent civil society statement on jurisdiction< http://www.itforchange.net/sites/default/files/Jurisdiction%20of% 20ICANN.pdf>, we also suggested a method whereby any such withdrawal of immunity can be made difficult/ ineffectual (see option 3 in the end).

The proposed jurisdictional immunity would also require all governments to sign off on such status, given ICANN’s reach.

I dont see why so. Only US gov needs to agree.

I know that there is a significant literature on international compacts and law. Given the often decades long time frames for the passage and acceptance of such law, the Internet as we know it is unlikely to exist by the time it comes into force.

These are weak excuses. It can be done in 6 months. But in any case, if it satisfies those who want to move towards international jurisdiction, what do you lose in allowing to set in motion the process, esp if you think it would take forever to do anything. Let those who want have it. In the interim, status quo would stay.

To your question about why we do not discuss jurisdictional immunity under US law: it is because the domestic political reality of the situation makes such an eventuality so remote as to be hypothetical.

The same domestic situation makes the continuation of ICANN under US jurisdiction even less tenable.

This brings me to a very important point: the job of CCWG, working on behalf of the global community, is not to second guess what US gov will accept or not (unfortunately, that is what it has mostly done). If this was its real task, we as well may let US gov do what it may, instead of providing them the cover of legitimacy of the supposed will of the so called 'global community' which is what this process does. Our job is to recommend what we think in is best global interest, and is ordinarily plausible to do. This is what our job is, and we must just do that. Let US gov do its job - accept our recs or not. That burden is upon them - let s not take up their burden. This aspect of the work of the "community" groups involved in the transition process has always greatly bothered me. We must have clarity about - on whose behalf are we working (i think, for the global community, but you can clarify) and what our recs must be based on (I think, on our understanding of what is best for the global community, and not what we think US gov likes and would agree to, and what not, but again you can clarify)

The described quest is admirable but IMO is a non-starter. Conditions do not exist presently to make it a possible.

We are part of once in decades constitutional process about ICANN's structures. If it is not now, it is never.

parminder

Best regards,

John Laprise, Ph.D. Consulting Scholar

<http://www.linkedin.com/in/jplaprise/><http://www. linkedin.com/in/jplaprise/>http://www.linkedin.com/in/jplaprise/

From: parminder [<mailto:parminder@itforchange.net>mailto:parmind er@itforchange.net] Sent: Tuesday, December 20, 2016 2:57 AM To: John Laprise <mailto:jlaprise@gmail.com> <jlaprise@gmail.com><mailto: jlaprise@gmail.com>; accountability-cross-community@icann.org<mailto:acc ountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Jurisdiction Proposed Questions and Poll Results

On Monday 19 December 2016 08:14 PM, John Laprise wrote:

Possibilities of jurisdictional immunity? Could you please provide examples of organizations that enjoy such.

John The most well known case of jurisdictional immunity is of course for organisations incorporated under international law. Unlike what has been argued here variously, although international law has to be made by governments through treaties etc that says nothing about the actual governance structure of the concerned organisation, ICANN in this case. International law can, to take an extreme case, hand over complete governance of a body created/ incorporated under international law to you and me... Nothing circumscribes how international law is written as long as all countries agree to it. It is entirely possible, and I think extremely plausible, that they would agree to write in such law the exact governance structure of ICANN as it is at present. Right now too, ICANN exists by and under the strength of its law of incorporation which is US law. In the scenario I present, it would just be international law instead of US law. Yes, there are matters to worked out in this regard, but if democracy and self-determination of all people, equally, is of any importance at all, we can go through the process, including doing the needed innovations as needed. The current international system was not handed over to us by God, it was evolved by people like us, who responded appropriately to newer and newer global challenges, as the one that faces us now. To turn ones face away and say, nothing can be done here, to evolve our democratic international systems, is to vote for a status quo which serves some, but not others. And these are the others that are protesting here, and seeking appropriate change. It is a political issue, lets not treat it as a technical issue, of what is argued to be difficult or too "troublesome" to pursue.

Next, even without going the international law route, as has been said many times earlier here, US law allows even non profits to be given jurisdictional immunity. The concerned law is the United States International Organisations Immunities Act<https://archive.icann.org/ en/psc/annex9.pdf> . And an example of a US non-profit being given jurisdiction immunity under it is International Fertilizer and Development Center. This has been discussed in a report commissioned by ICANN itself which can be found at https://archive.icann.org/en/psc/corell-24aug06.html .

I have been unable to understand why can we not agree to even jurisdictional immunity under existing US law, which keeps ICANN in the US, preserves its existing structures, and does go considerable way to address the concerns about those who are concerned about application of US public law on ICANN, and what it may mean for its global governance work.

The argument is advanced that this may affect the operation of the newly instituted community accountability mechanism. I dont think this is not true. This mechanism is a matter of internal ICANN governance system, which is a 'private' arrangement with choice of law available to it. It simply has to be put in ICANN bylaws that ICANN governance processes will be subject to adjudication by Californian courts as present. That should do. Of course the mentioned International Fertilizer and Development Centre also must be existing with some governance systems, that admit of external adjudication, even as it enjoys the benefit of jurisdictional immunity from US public laws. Such immunity always only pertains to the policy and such international core activities of the concerned organisation, and associated matters. It would not, for instance, extend to actual crime being committed by its personnel on its premises. All such matters of various distinctions get taken care of when we enter the actual processes of such immunities etc. Right now, the issue is only to decide to go down the route, or not.

parminder

Best regards,

John Laprise, Ph.D. Consulting Scholar

http://www.linkedin.com/in/jplaprise/

From: accountability-cross-community-bounces@icann.org<mailto: accountability-cross-community-bounces@icann.org> [mailto: accountability-cross-community-bounces@icann.org] On Behalf Of parminder Sent: Monday, December 19, 2016 7:10 AM To: accountability-cross-community@icann.org<mailto:acc ountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Jurisdiction Proposed Questions and Poll Results

On Saturday 17 December 2016 12:40 AM, Mueller, Milton L wrote:

SNIP

John Laprise's wording was much, much better:

"What are the advantages or disadvantages, if any, relating to changing ICANN’s jurisdiction*, particularly with regard to the actual operation of ICANN’s policies and accountability mechanisms?"

This formulation does not include possibilities of jurisdictional immunity.

Something like

"What are the advantages or disadvantages, if any, relating to changing ICANN’s jurisdiction*, or providing possible jurisdictional immunity, particularly with regard to the actual operation of ICANN’s policies and accountability mechanisms?"

would be better.

parminder

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Dear Sam, Thank you again for your good will and kind effort to find a solution for the matter but the solution is not postpose dealing with the same. As I mentioned earlier. if the issue is not properly responded the entire WS2 would fail. This is a fundamental ,crucial and core issue and MUST be responded I am aganist NO CHANGE Regards Kavouss 2016-12-24 21:22 GMT+01:00 Sam Lanfranco <sam@lanfranco.net>:

Colleagues,

This is a short attempt is my last effort to get to the essence of the jurisdiction issue, an issue that is both complex and contentious. There are two views at play here. I will try to capture them in simple terms, without repeating the arguments supporting either position.

One is that jurisdiction is such a hot button issue that, as Philip Corwin argues, raising it as a major issue in its own right would “…further inflame a debate that cannot end in consensus agreement, as there is a fundamental incompatibility between altering ICANN’s status as California non-profit and effectively exercising the empowered community accountability powers that accompanied the IANA transition and were designed to operate within that specific legal framework.” . The other view, stated by Pedro Ivo Ferraz da Silva, is that the topic of jurisdiction was postponed by the CCWG because “the majority of this group thought it was not appropriate to deal with it in the pre-transition period due to time constraints”, and I might add because it is both complex and contentious.

Had the issues not been complex and contentious, either (a) something like Philip Corwin’s push for “ICANN’s permanent status as a US-based non-profit corporation…enshrined in a Fundamental Bylaw prior to the completion of WS1” would be up for discussion, or (b) the NETmundial call for “…ICANN’s internationalization and not becoming an intergovernmental organization” would have built some options based on seeking answers to a list of relevant jurisdiction questions. At this point we would have some progress on what, in the longer term, is the way forward. None of that has happened.

As well, I agree with the view is that “Until this matter is resolved with finality it will remain a scab to be constantly picked at, always threatening to become a festering sore on the body politic of IG”. Philip Corwin and others worry about the downside risks to any rash attempt to recommend a change in ICANN’s organizational jurisdiction. Others see the act of not addressing it as a partisan effort to “sweep the issue under the rug” and maintain a self-interested status quo. In the absence of a proper discussion around this issue the “festering sore” will remain. Stakeholders will be embroiled in ill framed disputes that inflame positions, and do not lead to better insights on how ICANN’s residence and jurisdiction issues are addressed. Without dialogue even the status quo will become an increasingly untenable position.

My view is that current CCWG discussion should include discussion about where and how that jurisdiction discussion should occur. The jurisdiction issue is a challenge, an exciting opportunity for ICANN to pioneer new ground, and more broadly an opportunity to further refine global multistakeholder engagement in bottom-up policy making. In terms of ICANN’s decision making speed this will require a longer time frame than that for the current CCWG on Accountability, although advice on how to this discussion should be constituted is a legitimate agenda item for the current Accountability CCWG.

Sam Lanfranco npoc/csih

_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community

-----Original Message----- At the same time, let us all try to return to a constructive and step-by-step approach, building on the progress made so far, in order to make progress on our mandate, established by the whole multistakeholder community back in Marrakech.

I agree, and I think both Pedro's and Phil's position are based on some confusion of issues. It we calm down a bit and look at this more carefully we can make progress. Pedro may be confusing the inclusion or exclusion of Question 4 in our initial request with the question of whether we explore issues in US jurisdiction at all. But excluding Question 4 from our initial request for information is not the same as a refusal to explore the questions it raises. I have proposed _separating_ Q4 from the other 3 questions, not eliminating it entirely. I proposed this not because I want to avoid the questions Q4 poses, but because I want those questions to be developed better and I want to avoid conflating it with the narrower questions about dispute resolution that Q's 1-3 were designed to address. It is a mistake to put those two things together. The information we gather from Q's 1-3 will suffer from their attachment to the potentially more controversial issues raised by Q4. Let me also add that the divisive insistence that this is a matter of US citizens vs non-US citizens needs to be dropped. Avri and myself, e.g., are both US citizens/residents and have serious concerns about possible intrusions of US foreign policy and other nationalistic and governmental concerns into ICANN matters. At the same time we are both staunch supporters of a nongovernmental model in this space and have no inherent objection to California law as ICANN's basis. Phil Corwin on the other hand is confusing the issue of whether ICANN's corporate HQ is in California with the question of whether ICANN will be an intergovernmental entity. These questions have very little to do with each other. It is of course true that there are still a few people out there who would like for ICANN to become intergovernmental, but they are a tiny minority and the weight of history is totally against them. Put more bluntly, it ain't gonna happen. Supporters of the MS model and opponents of intergovernmentalism have legitimate reasons to investigate the impact of US jurisdiction, because the US is a global power with very specific foreign policy and military interests. US jurisdiction thus may have the potential to create opportunities for one government - the US - to have an inappropriate level of influence over ICANN's transnational, nonstate actor based governance processes. One can consider those issues without implying that ICANN's corporate HQ needs to move. So let's stop making the status of Q4 a proxy for a long-settled war over whether ICANN is private or governmental, and let's stop pretending that those who want to separate the issues raised by Q4 from the narrower more focused issues in Q1-3 are trying to avoid legitimate issues. As for creating a separate CCWG, are you kidding? This is the CCWG subgroup created specifically for jurisdictional issues and we don't make difficult issues easier to resolve by creating additional structures. Dr. Milton L. Mueller Professor, School of Public Policy Georgia Institute of Technology

In this vein, and consistent with our conversation in Hyderabad, let us continue with the line directed to requesting input from the wider community.

The four questions developed so far will allow us to gather much needed input on facts, examples and well-founded opinions on the influence of ICANNs jurisdiction, taking into account its multiple layers, on its operations and accountability.

If we all are constructive and accept esch others' views as worthy of further discussion and study, we will be able to get this important step further.

Hence, let us please stay on the right track and finalize formulations of all four questions, and keep up the good spirit of cooperation.

with my best wishes for you all during the festivities

kind regards

Jorge

________________________________

Von: Pedro Ivo Ferraz da Silva <pedro.ivo@itamaraty.gov.br> Datum: 24. Dezember 2016 um 15:53:55 MEZ An: Greg Shatan <gregshatanipc@gmail.com>, parminder <parminder@itforchange.net>, Kavouss Arasteh <kavouss.arasteh@gmail.com> Cc: accountability-cross-community@icann.org <accountability-cross- community@icann.org> Betreff: [CCWG-ACCT] RES: Jurisdiction Proposed Questions and Poll Results

Dear CCWG-colleagues,

After reading some comments in this email thread, I must admit to be really disappointed.

Some of our colleagues in the CCWG seem to have forgotten - perhaps on purpose - that the topic of jurisdiction was allocated to WS2 as a result of a postponement, since the majority of this group thought it was not appropriate to deal with it in the pre-transition period due to time constraints. My government was not in favor of postponing the discussion on jurisdiction, as we consider it was - and remains - a fundamental aspect of a new ICANN truly governed by the multistakeholder community without any pre-conditions, but in respect to the viewpoint of the other colleagues, we agreed to move it to WS2.

Now that time has come to properly deal with this topic, it is quite frustrating to notice that some participants insist on limiting and/or procrastinating this debate, including by using the absurd argument that any discussion around jurisdiction cannot put into question any aspect already decided in WS1, which is embedded in the California law. We cannot see good faith in that kind of circular argument. In our view, the discussion around the inclusion or exclusion of Q.4 shows quite clearly that some of those who have fiercely objected to any jurisdiction debate during WS1 are maintaining their objection in WS2 as well. On that particular topic (Q.4) we concur with the view that upon deciding on institutional arrangements we should not only consider already occurred cases but also take into account logically strong possibilities. The responses to the questionnaire should thus help us to deal with all possibilities associate to jurisdiction. In case any unsubstantiated opinion will be received, it should be summarily discarded. From the various jurisdiction calls it became quite evident that a substantial part of the subgroup - mainly non-US - has great interest in examining and debating ways through which we can make sure that any issue associated to jurisdiction be addressed in a way compatible with the company's international remit of coordinating Internet public identifiers. In that context, I would like to highlight my government´s understanding that although the proposed questionnaire under discussion may provide us with some relevant factual information, it does not in any way cover all aspects of interest. We would like to refer, for example, to the list of issues compiled by Kavouss Arasteh as per his 13 December 2016 e-mail. We would also refer to questions that have continuously been asked by Parminder, apparently without any satisfactory answer. Those issues and questions include, for example, dispute settlement related topics, which demonstrates, in our view, that jurisdiction cannot be seen purely from businesses´ viewpoint. As someone has stated, we also need to look at the relationship between ICANN and third parties and adequately consider non-contracted Parties that might be affected by ICANN´s acts and/or omissions. From the perspective of the Brazilian government, the topics raised by Kavouss, Parminder and others are issues of particular interest which, needless to say, will not be adequately addressed through the mere analysis of the answers provided to the questionnaire, whether it includes Q.4 or not. My government has expressed its interest in pursuing discussion on jurisdiction through those angles many times - both during the IANA transition process and well before that. Other governments have done the same, as well as a sound number of civil society organizations around the globe. The "NETmundial Multistakeholder Statement", while calling for the internationalization of ICANN, clearly expresses this as well. Let me emphasize, by the way, that the NETmundial Statement calls for ICANN´s internationalization and not for it to become an intergovernmental organization. Those are two different notions that should not be confounded.

If this subgroup fails to deal with the multidimensional issues associated to jurisdiction properly , it may be applauded by some segments , but it will not contribute to putting in place a framework that will ensure the shared goal of making ICANN a legitimate entity in the eyes of all stakeholders, including governments. To achieve that, no issues should be discarded as "non important" or "not yet verified". While preserving the essence of what was achieved in WS1, innovative thinking, including on the part of persons with legal expertise, will be needed. Is it worth to wipe an important debate under the carpet just to comfort one or a few stakeholder groups while discontenting others? What kind of legitimacy is such a biased and limited exercise likely to have within the international community? .

It is time the subgroup - including the coChairs - make a honest assessment of the various viewpoints related to ICANN's jurisdiction and conduct the debate as openly as possible in order to address all the concerns and interests behind it.

Kind regards,

Sec. Pedro Ivo Ferraz da Silva Division of Information Society Ministry of Foreign Affairs - Brazil T: +55 61 2030-6609

________________________________ De: accountability-cross-community-bounces@icann.org [accountability- cross-community-bounces@icann.org] em nome de parminder [parminder@itforchange.net] Enviado: quinta-feira, 22 de dezembro de 2016 14:01 Para: Kavouss Arasteh; Greg Shatan Cc: accountability-cross-community@icann.org Assunto: Re: [CCWG-ACCT] Jurisdiction Proposed Questions and Poll Results

Dear Kavouss

You are right, we should first deal with the issue of the questionnaire.

I agree, as do many others, that there is no justification to remove the proposed Q 4 from the questionnaire. The question must go out along with others.

A question seeking information is only a question seeking information. People may chose to not respond to it, or give different responses, likely in opposition to one another. That is all very fine, and quite expected. But such forceful arguments to not ask for certain kinds of information is very disturbing, even alarming. (I have issues with how the other questions are framed, but I am fine to let them go out because some people want them to be posed.)

Ordinarily, if a good number of participants here wanted a question, that should be enough to include it. Here, a majority of those who voted on the issue of this particular question wanted the question included. That should have conclusively stopped the debate. But no, not so. There is persistent effort to censor this question. And this in a process that is advertised as open, transparent, collaborative, and what not. There is something very basically wrong here.

parminder

On Thursday 22 December 2016 07:20 PM, Kavouss Arasteh wrote: Dear John. Dear Parminder, It is difficult for me to conclude on any solution between the lines of your discussion. Could any of you kindly give a resume of the exchanged views. We need to look for some compromise solution knowing that some hard liners like x and y insist to impose their objections to send Q4.I continue to object to all questions until all 4 are agreed Nothing is agreed untill everything is agreed this is a Global multistakholder Group discussion and NOT North American Sub-Region multistakholder Group dominated by certain individuals Regards Kavouss

2016-12-22 13:06 GMT+01:00 parminder <parminder@itforchange.net<mailto:parminder@itforchange.net>>:

On Tuesday 20 December 2016 08:37 PM, John Laprise wrote: "To turn ones face away and say, nothing can be done here, to evolve our democratic international systems, is to vote for a status quo which serves some, but not others."

Rather, it is an acknowledgement of reality.

Apologies for appearing to be flippant, but isnt that what every status quo-ist says. Rule of law is neither globally strong nor evenly distributed. I can imagine a world in which the way forward you describe is plausible but, regrettably, it is not the one we live in. Other systems need strengthening and in some cases even existence before the way forward is open. It's not a vote for the status quo but a recognition of path dependency.

I am not asking for a violent deviation from the path - both options that I propose, a new international law and immunity under existing US Act carries forward the path-dependency, and completely safeguard the existing structures and processes of ICANN, the system I think you allude to as requiring strengthening. What I propose in fact further strengthens it, to a considerable extent. The ICANN system's current jurisdictional oversight by a single country is its biggest weak point in terms of international legitimacy. ( A point, unfortunately USians here seem not able to see and sympathise with.) Imagine an ICANN with immunity from US jurisdiction; how much legitimacy, and thus strength, it adds to the system.

Thanks for the back rounder Parminder. It was, along with some parallel research, quite helpful.

Thanks John, you are welcome.

The problem remains however that there is no analogous organization to ICANN merely in terms of its contractual authority.

Firstly, if we are hoping that a fully-developed, well-rounded solution, with everything fully covered by enough exact precedents, to this complex but very genuine problem, will simply one day drop in our laps, I assure you that this is not going to happen. We have to work for it, join the dots, take risks, make innovations, and so on. The point is, who is losing and gaining what from the present dispensation, and who is willing to do what is required to do.

Next, I see that organisations like International Fertilizer and Development Centre, which we cited as an example of an NPO given jurisdictional immunity, also does run many projects worldwide. Any such project would require use of a legal status, entering contracts, and so on.... We just need to look into it. But if we close our eyes, and simply refuse to explore options, we are not going to get anywhere. I am not saying this example will be an exact fit for our requirement, but we need to see what is possible, and innovate and evolve over it.

I'd also add that many of the benefits of the act are at the discretion of the US Secretary of State and can be revoked.

Yes, which is why immunity under US Act is less sustainable option than international law based immunity. But still better than the present condition. In the recent civil society statement on jurisdiction<http://www.itforchange.net/sites/default/files/Jurisdiction%20of %20ICANN.pdf>, we also suggested a method whereby any such withdrawal of immunity can be made difficult/ ineffectual (see option 3 in the end).

The proposed jurisdictional immunity would also require all governments to sign off on such status, given ICANN's reach.

I dont see why so. Only US gov needs to agree.

I know that there is a significant literature on international compacts and law. Given the often decades long time frames for the passage and acceptance of such law, the Internet as we know it is unlikely to exist by the time it comes into force.

These are weak excuses. It can be done in 6 months. But in any case, if it satisfies those who want to move towards international jurisdiction, what do you lose in allowing to set in motion the process, esp if you think it would take forever to do anything. Let those who want have it. In the interim, status quo would stay.

To your question about why we do not discuss jurisdictional immunity under US law: it is because the domestic political reality of the situation makes such an eventuality so remote as to be hypothetical.

The same domestic situation makes the continuation of ICANN under US jurisdiction even less tenable.

This brings me to a very important point: the job of CCWG, working on behalf of the global community, is not to second guess what US gov will accept or not (unfortunately, that is what it has mostly done). If this was its real task, we as well may let US gov do what it may, instead of providing them the cover of legitimacy of the supposed will of the so called 'global community' which is what this process does. Our job is to recommend what we think in is best global interest, and is ordinarily plausible to do. This is what our job is, and we must just do that. Let US gov do its job - accept our recs or not. That burden is upon them - let s not take up their burden. This aspect of the work of the "community" groups involved in the transition process has always greatly bothered me. We must have clarity about - on whose behalf are we working (i think, for the global community, but you can clarify) and what our recs must be based on (I think, on our understanding of what is best for the global community, and not what we think US gov likes and would agree to, and what not, but again you can clarify)

The described quest is admirable but IMO is a non-starter. Conditions do not exist presently to make it a possible.

We are part of once in decades constitutional process about ICANN's structures. If it is not now, it is never.

parminder

Best regards,

John Laprise, Ph.D. Consulting Scholar

<http://www.linkedin.com/in/jplaprise/><http://www.linkedin.com/in/jplapri se/>http://www.linkedin.com/in/jplaprise/

From: parminder [<mailto:parminder@itforchange.net>mailto:parminder@itforchange.net] Sent: Tuesday, December 20, 2016 2:57 AM To: John Laprise <mailto:jlaprise@gmail.com> <jlaprise@gmail.com><mailto:jlaprise@gmail.com>; accountability-cross- community@icann.org<mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Jurisdiction Proposed Questions and Poll Results

On Monday 19 December 2016 08:14 PM, John Laprise wrote:

Possibilities of jurisdictional immunity? Could you please provide examples of organizations that enjoy such.

John The most well known case of jurisdictional immunity is of course for organisations incorporated under international law. Unlike what has been argued here variously, although international law has to be made by governments through treaties etc that says nothing about the actual governance structure of the concerned organisation, ICANN in this case. International law can, to take an extreme case, hand over complete governance of a body created/ incorporated under international law to you and me... Nothing circumscribes how international law is written as long as all countries agree to it. It is entirely possible, and I think extremely plausible, that they would agree to write in such law the exact governance structure of ICANN as it is at present. Right now too, ICANN exists by and under the strength of its law of incorporation which is US law. In the scenario I present, it would just be international law instead of US law. Yes, there are matters to worked out in this regard, but if democracy and self-determination of all people, equally, is of any importance at all, we can go through the process, including doing the needed innovations as needed. The current international system was not handed over to us by God, it was evolved by people like us, who responded appropriately to newer and newer global challenges, as the one that faces us now. To turn ones face away and say, nothing can be done here, to evolve our democratic international systems, is to vote for a status quo which serves some, but not others. And these are the others that are protesting here, and seeking appropriate change. It is a political issue, lets not treat it as a technical issue, of what is argued to be difficult or too "troublesome" to pursue.

Next, even without going the international law route, as has been said many times earlier here, US law allows even non profits to be given jurisdictional immunity. The concerned law is the United States International Organisations Immunities Act<https://archive.icann.org/en/psc/annex9.pdf> . And an example of a US non-profit being given jurisdiction immunity under it is International Fertilizer and Development Center. This has been discussed in a report commissioned by ICANN itself which can be found at https://archive.icann.org/en/psc/corell-24aug06.html .

I have been unable to understand why can we not agree to even jurisdictional immunity under existing US law, which keeps ICANN in the US, preserves its existing structures, and does go considerable way to address the concerns about those who are concerned about application of US public law on ICANN, and what it may mean for its global governance work.

The argument is advanced that this may affect the operation of the newly instituted community accountability mechanism. I dont think this is not true. This mechanism is a matter of internal ICANN governance system, which is a 'private' arrangement with choice of law available to it. It simply has to be put in ICANN bylaws that ICANN governance processes will be subject to adjudication by Californian courts as present. That should do. Of course the mentioned International Fertilizer and Development Centre also must be existing with some governance systems, that admit of external adjudication, even as it enjoys the benefit of jurisdictional immunity from US public laws. Such immunity always only pertains to the policy and such international core activities of the concerned organisation, and associated matters. It would not, for instance, extend to actual crime being committed by its personnel on its premises. All such matters of various distinctions get taken care of when we enter the actual processes of such immunities etc. Right now, the issue is only to decide to go down the route, or not.

parminder

Best regards,

John Laprise, Ph.D. Consulting Scholar

http://www.linkedin.com/in/jplaprise/

From: accountability-cross-community- bounces@icann.org<mailto:accountability-cross-community- bounces@icann.org> [mailto:accountability-cross-community- bounces@icann.org] On Behalf Of parminder Sent: Monday, December 19, 2016 7:10 AM To: accountability-cross-community@icann.org<mailto:accountability-cross- community@icann.org> Subject: Re: [CCWG-ACCT] Jurisdiction Proposed Questions and Poll Results

On Saturday 17 December 2016 12:40 AM, Mueller, Milton L wrote:

SNIP

John Laprise's wording was much, much better:

"What are the advantages or disadvantages, if any, relating to changing ICANN's jurisdiction*, particularly with regard to the actual operation of ICANN's policies and accountability mechanisms?"

This formulation does not include possibilities of jurisdictional immunity.

Something like

"What are the advantages or disadvantages, if any, relating to changing ICANN's jurisdiction*, or providing possible jurisdictional immunity, particularly with regard to the actual operation of ICANN's policies and accountability mechanisms?"

would be better.

parminder

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On Monday 26 December 2016 11:36 PM, Kavouss Arasteh wrote:

Dear All, It is really funny and surprising that one individual believes that he is the only one who is right and the rest of the people either wrong or misunderstood or have no idea. How some one could claim that whatever other people say is mistake There is no rational nor convincing arguments Q's 1-3 will suffer from their attachment to the potentially Q4. Sir, you can not drop the reality as it exists .I wish to hear how you and your colleagues as US citizens/residents having serious concerns about possible intrusions of US foreign policy and other nationalistic and governmental concerns into ICANN matters would resolve or prevent such interférence .Everyone is staunch supporters of a nongovernmental model in this space .Whether you have or have not inherent objection to California law as ICANN's basis is your choice but it is not others's choices .

It is not clear from where you got the information that there are still a few people out there who would like for ICANN to become intergovernmental, Your judgement on whether there minority or majority has no valid basis and your judgement on the weight of history being totally against them is also just your guess. You can not deny the fact that there is a high impact of US jurisdiction, because the US is a global power with very specific foreign policy and military interests. US jurisdiction thus may have the potential to create opportunities for one government - the US - to have an inappropriate level of influence over ICANN's transnational process ,Then what you propose to stop such influence

Yes, I would also like to know. To quote you, Milton, "Supporters of the MS model and opponents of intergovernmentalism have legitimate reasons to investigate the impact of US jurisdiction, because the US is a global power with very specific foreign policy and military interests. US jurisdiction thus may have the potential to create opportunities for one government - the US - to have an inappropriate level of influence over ICANN's transnational, nonstate actor based governance processes." I havent seen not only no attempt to explore ways to stop such influence by you, and many others here, but, much more problematically, strong resistance to anyone trying to do so. Now that you state the matter in this way, it does arouse curiosity about what kind of directions of exploration you yourself possibly see in this regard. As for your next sentence "One can consider those issues without implying that ICANN's corporate HQ needs to move." Yes, this is entirely true. Have been saying this for a long time but somehow hasnt had traction. parminder

There is no narrow and wide questions all are valid questions interrelated and must go together. Allow all 4 questions go out and then wait what will happens . Regards Kavouss

2016-12-26 17:42 GMT+01:00 Mueller, Milton L <milton@gatech.edu <mailto:milton@gatech.edu>>:

> -----Original Message----- > At the same time, let us all try to return to a constructive and step-by-step > approach, building on the progress made so far, in order to make progress on > our mandate, established by the whole multistakeholder community back in > Marrakech.

I agree, and I think both Pedro's and Phil's position are based on some confusion of issues. It we calm down a bit and look at this more carefully we can make progress.

Pedro may be confusing the inclusion or exclusion of Question 4 in our initial request with the question of whether we explore issues in US jurisdiction at all. But excluding Question 4 from our initial request for information is not the same as a refusal to explore the questions it raises. I have proposed _separating_ Q4 from the other 3 questions, not eliminating it entirely. I proposed this not because I want to avoid the questions Q4 poses, but because I want those questions to be developed better and I want to avoid conflating it with the narrower questions about dispute resolution that Q's 1-3 were designed to address. It is a mistake to put those two things together. The information we gather from Q's 1-3 will suffer from their attachment to the potentially more controversial issues raised by Q4. Let me also add that the divisive insistence that this is a matter of US citizens vs non-US citizens needs to be dropped. Avri and myself, e.g., are both US citizens/residents and have serious concerns about possible intrusions of US foreign policy and other nationalistic and governmental concerns into ICANN matters. At the same time we are both staunch supporters of a nongovernmental model in this space and have no inherent objection to California law as ICANN's basis.

Phil Corwin on the other hand is confusing the issue of whether ICANN's corporate HQ is in California with the question of whether ICANN will be an intergovernmental entity. These questions have very little to do with each other. It is of course true that there are still a few people out there who would like for ICANN to become intergovernmental, but they are a tiny minority and the weight of history is totally against them. Put more bluntly, it ain't gonna happen. Supporters of the MS model and opponents of intergovernmentalism have legitimate reasons to investigate the impact of US jurisdiction, because the US is a global power with very specific foreign policy and military interests. US jurisdiction thus may have the potential to create opportunities for one government - the US - to have an inappropriate level of influence over ICANN's transnational, nonstate actor based governance processes. One can consider those issues without implying that ICANN's corporate HQ needs to move.

So let's stop making the status of Q4 a proxy for a long-settled war over whether ICANN is private or governmental, and let's stop pretending that those who want to separate the issues raised by Q4 from the narrower more focused issues in Q1-3 are trying to avoid legitimate issues.

As for creating a separate CCWG, are you kidding? This is the CCWG subgroup created specifically for jurisdictional issues and we don't make difficult issues easier to resolve by creating additional structures.

Dr. Milton L. Mueller Professor, School of Public Policy Georgia Institute of Technology

> > In this vein, and consistent with our conversation in Hyderabad, let us > continue with the line directed to requesting input from the wider community. > > The four questions developed so far will allow us to gather much needed input > on facts, examples and well-founded opinions on the influence of ICANNs > jurisdiction, taking into account its multiple layers, on its operations and > accountability. > > If we all are constructive and accept esch others' views as worthy of further > discussion and study, we will be able to get this important step further. > > Hence, let us please stay on the right track and finalize formulations of all four > questions, and keep up the good spirit of cooperation. > > with my best wishes for you all during the festivities > > kind regards > > Jorge > > > ________________________________ > > Von: Pedro Ivo Ferraz da Silva <pedro.ivo@itamaraty.gov.br <mailto:pedro.ivo@itamaraty.gov.br>> > Datum: 24. Dezember 2016 um 15:53:55 MEZ > An: Greg Shatan <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>>, parminder > <parminder@itforchange.net <mailto:parminder@itforchange.net>>, Kavouss Arasteh > <kavouss.arasteh@gmail.com <mailto:kavouss.arasteh@gmail.com>> > Cc: accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> <accountability-cross- > community@icann.org <mailto:community@icann.org>> > Betreff: [CCWG-ACCT] RES: Jurisdiction Proposed Questions and Poll Results > > Dear CCWG-colleagues, > > After reading some comments in this email thread, I must admit to be really > disappointed. > > Some of our colleagues in the CCWG seem to have forgotten - perhaps on > purpose - that the topic of jurisdiction was allocated to WS2 as a result of a > postponement, since the majority of this group thought it was not appropriate > to deal with it in the pre-transition period due to time constraints. My > government was not in favor of postponing the discussion on jurisdiction, as > we consider it was - and remains - a fundamental aspect of a new ICANN truly > governed by the multistakeholder community without any pre-conditions, > but in respect to the viewpoint of the other colleagues, we agreed to move it > to WS2. > > Now that time has come to properly deal with this topic, it is quite frustrating > to notice that some participants insist on limiting and/or procrastinating this > debate, including by using the absurd argument that any discussion around > jurisdiction cannot put into question any aspect already decided in WS1, > which is embedded in the California law. We cannot see good faith in that kind > of circular argument. > In our view, the discussion around the inclusion or exclusion of Q.4 shows > quite clearly that some of those who have fiercely objected to any jurisdiction > debate during WS1 are maintaining their objection in WS2 as well. On that > particular topic (Q.4) we concur with the view that upon deciding on > institutional arrangements we should not only consider already occurred > cases but also take into account logically strong possibilities. The responses to > the questionnaire should thus help us to deal with all possibilities associate to > jurisdiction. In case any unsubstantiated opinion will be received, it should be > summarily discarded. > From the various jurisdiction calls it became quite evident that a substantial > part of the subgroup - mainly non-US - has great interest in examining and > debating ways through which we can make sure that any issue associated to > jurisdiction be addressed in a way compatible with the company's > international remit of coordinating Internet public identifiers. In that context, I > would like to highlight my government´s understanding that although the > proposed questionnaire under discussion may provide us with some relevant > factual information, it does not in any way cover all aspects of interest. We > would like to refer, for example, to the list of issues compiled by Kavouss > Arasteh as per his 13 December 2016 e-mail. We would also refer to > questions that have continuously been asked by Parminder, apparently > without any satisfactory answer. Those issues and questions include, for > example, dispute settlement related topics, which demonstrates, in our view, > that jurisdiction cannot be seen purely from businesses´ viewpoint. As > someone has stated, we also need to look at the relationship between ICANN > and third parties and adequately consider non-contracted Parties that might > be affected by ICANN´s acts and/or omissions. > From the perspective of the Brazilian government, the topics raised by > Kavouss, Parminder and others are issues of particular interest which, > needless to say, will not be adequately addressed through the mere analysis > of the answers provided to the questionnaire, whether it includes Q.4 or not. > My government has expressed its interest in pursuing discussion on > jurisdiction through those angles many times - both during the IANA > transition process and well before that. Other governments have done the > same, as well as a sound number of civil society organizations around the > globe. The "NETmundial Multistakeholder Statement", while calling for the > internationalization of ICANN, clearly expresses this as well. Let me > emphasize, by the way, that the NETmundial Statement calls for ICANN´s > internationalization and not for it to become an intergovernmental > organization. Those are two different notions that should not be confounded. > > If this subgroup fails to deal with the multidimensional issues associated to > jurisdiction properly , it may be applauded by some segments , but it will not > contribute to putting in place a framework that will ensure the shared goal of > making ICANN a legitimate entity in the eyes of all stakeholders, including > governments. To achieve that, no issues should be discarded as "non > important" or "not yet verified". While preserving the essence of what was > achieved in WS1, innovative thinking, including on the part of persons with > legal expertise, will be needed. Is it worth to wipe an important debate under > the carpet just to comfort one or a few stakeholder groups while > discontenting others? What kind of legitimacy is such a biased and limited > exercise likely to have within the international community? . > > It is time the subgroup - including the coChairs - make a honest assessment of > the various viewpoints related to ICANN's jurisdiction and conduct the debate > as openly as possible in order to address all the concerns and interests behind > it. > > Kind regards, > > Sec. Pedro Ivo Ferraz da Silva > Division of Information Society > Ministry of Foreign Affairs - Brazil > T: +55 61 2030-6609 <tel:%2B55%2061%202030-6609> > > ________________________________ > De: accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> [accountability- > cross-community-bounces@icann.org <mailto:cross-community-bounces@icann.org>] em nome de parminder > [parminder@itforchange.net <mailto:parminder@itforchange.net>] > Enviado: quinta-feira, 22 de dezembro de 2016 14:01 > Para: Kavouss Arasteh; Greg Shatan > Cc: accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> > Assunto: Re: [CCWG-ACCT] Jurisdiction Proposed Questions and Poll Results > > > Dear Kavouss > > You are right, we should first deal with the issue of the questionnaire. > > I agree, as do many others, that there is no justification to remove the > proposed Q 4 from the questionnaire. The question must go out along with > others. > > A question seeking information is only a question seeking information. People > may chose to not respond to it, or give different responses, likely in > opposition to one another. That is all very fine, and quite expected. But such > forceful arguments to not ask for certain kinds of information is very > disturbing, even alarming. (I have issues with how the other questions are > framed, but I am fine to let them go out because some people want them to > be posed.) > > Ordinarily, if a good number of participants here wanted a question, that > should be enough to include it. Here, a majority of those who voted on the > issue of this particular question wanted the question included. That should > have conclusively stopped the debate. But no, not so. There is persistent effort > to censor this question. And this in a process that is advertised as open, > transparent, collaborative, and what not. There is something very basically > wrong here. > > parminder > > On Thursday 22 December 2016 07:20 PM, Kavouss Arasteh wrote: > Dear John. > Dear Parminder, > It is difficult for me to conclude on any solution between the lines of your > discussion. > Could any of you kindly give a resume of the exchanged views. > We need to look for some compromise solution knowing that some hard > liners like x and y insist to impose their objections to send Q4.I continue to > object to all questions until all 4 are agreed Nothing is agreed untill everything > is agreed this is a Global multistakholder Group discussion and NOT North > American Sub-Region multistakholder Group dominated by certain individuals > Regards Kavouss > > 2016-12-22 13:06 GMT+01:00 parminder > <parminder@itforchange.net <mailto:parminder@itforchange.net><mailto:parminder@itforchange.net <mailto:parminder@itforchange.net>>>: > > > On Tuesday 20 December 2016 08:37 PM, John Laprise wrote: > "To turn ones face away and say, nothing can be done here, to evolve our > democratic international systems, is to vote for a status quo which serves > some, but not others." > > Rather, it is an acknowledgement of reality. > > Apologies for appearing to be flippant, but isnt that what every status quo-ist > says. > Rule of law is neither globally strong nor evenly distributed. I can imagine a > world in which the way forward you describe is plausible but, regrettably, it is > not the one we live in. Other systems need strengthening and in some cases > even existence before the way forward is open. It's not a vote for the status > quo but a recognition of path dependency. > > I am not asking for a violent deviation from the path - both options that I > propose, a new international law and immunity under existing US Act carries > forward the path-dependency, and completely safeguard the existing > structures and processes of ICANN, the system I think you allude to as > requiring strengthening. What I propose in fact further strengthens it, to a > considerable extent. The ICANN system's current jurisdictional oversight by a > single country is its biggest weak point in terms of international legitimacy. ( A > point, unfortunately USians here seem not able to see and sympathise with.) > Imagine an ICANN with immunity from US jurisdiction; how much legitimacy, > and thus strength, it adds to the system. > > > Thanks for the back rounder Parminder. It was, along with some parallel > research, quite helpful. > > Thanks John, you are welcome. > > The problem remains however that there is no analogous organization to > ICANN merely in terms of its contractual authority. > > Firstly, if we are hoping that a fully-developed, well-rounded solution, with > everything fully covered by enough exact precedents, to this complex but very > genuine problem, will simply one day drop in our laps, I assure you that this is > not going to happen. We have to work for it, join the dots, take risks, make > innovations, and so on. The point is, who is losing and gaining what from the > present dispensation, and who is willing to do what is required to do. > > Next, I see that organisations like International Fertilizer and Development > Centre, which we cited as an example of an NPO given jurisdictional > immunity, also does run many projects worldwide. Any such project would > require use of a legal status, entering contracts, and so on.... We just need to > look into it. But if we close our eyes, and simply refuse to explore options, we > are not going to get anywhere. I am not saying this example will be an exact fit > for our requirement, but we need to see what is possible, and innovate and > evolve over it. > > I'd also add that many of the benefits of the act are at the discretion of the US > Secretary of State and can be revoked. > > Yes, which is why immunity under US Act is less sustainable option than > international law based immunity. But still better than the present condition. > In the recent civil society statement on > jurisdiction<http://www.itforchange.net/sites/default/files/Jurisdiction%20of <http://www.itforchange.net/sites/default/files/Jurisdiction%20of> > %20ICANN.pdf>, we also suggested a method whereby any such withdrawal of > immunity can be made difficult/ ineffectual (see option 3 in the end). > > The proposed jurisdictional immunity would also require all governments to > sign off on such status, given ICANN's reach. > > I dont see why so. Only US gov needs to agree. > > I know that there is a significant literature on international compacts and law. > Given the often decades long time frames for the passage and acceptance of > such law, the Internet as we know it is unlikely to exist by the time it comes > into force. > > These are weak excuses. It can be done in 6 months. But in any case, if it > satisfies those who want to move towards international jurisdiction, what do > you lose in allowing to set in motion the process, esp if you think it would take > forever to do anything. Let those who want have it. In the interim, status quo > would stay. > > > To your question about why we do not discuss jurisdictional immunity under > US law: it is because the domestic political reality of the situation makes such > an eventuality so remote as to be hypothetical. > > The same domestic situation makes the continuation of ICANN under US > jurisdiction even less tenable. > > This brings me to a very important point: the job of CCWG, working on behalf > of the global community, is not to second guess what US gov will accept or > not (unfortunately, that is what it has mostly done). If this was its real task, we > as well may let US gov do what it may, instead of providing them the cover of > legitimacy of the supposed will of the so called 'global community' which is > what this process does. Our job is to recommend what we think in is best > global interest, and is ordinarily plausible to do. This is what our job is, and we > must just do that. Let US gov do its job - accept our recs or not. That burden is > upon them - let s not take up their burden. This aspect of the work of the > "community" groups involved in the transition process has always greatly > bothered me. We must have clarity about - on whose behalf are we working (i > think, for the global community, but you can clarify) and what our recs must > be based on (I think, on our understanding of what is best for the global > community, and not what we think US gov likes and would agree to, and what > not, but again you can clarify) > > > The described quest is admirable but IMO is a non-starter. Conditions do not > exist presently to make it a possible. > > We are part of once in decades constitutional process about ICANN's > structures. If it is not now, it is never. > > parminder > > Best regards, > > John Laprise, Ph.D. > Consulting Scholar > > <http://www.linkedin.com/in/jplaprise/ <http://www.linkedin.com/in/jplaprise/>><http://www.linkedin.com/in/jplapri <http://www.linkedin.com/in/jplapri> > se/>http://www.linkedin.com/in/jplaprise/ <http://www.linkedin.com/in/jplaprise/> > > > > From: parminder > [<mailto:parminder@itforchange.net <mailto:parminder@itforchange.net>>mailto:parminder@itforchange.net <mailto:parminder@itforchange.net>] > Sent: Tuesday, December 20, 2016 2:57 AM > To: John Laprise <mailto:jlaprise@gmail.com <mailto:jlaprise@gmail.com>> > <jlaprise@gmail.com <mailto:jlaprise@gmail.com>><mailto:jlaprise@gmail.com <mailto:jlaprise@gmail.com>>; accountability-cross- > community@icann.org <mailto:community@icann.org><mailto:accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>> > Subject: Re: [CCWG-ACCT] Jurisdiction Proposed Questions and Poll Results > > On Monday 19 December 2016 08:14 PM, John Laprise wrote: > > Possibilities of jurisdictional immunity? Could you please provide examples of > organizations that enjoy such. > > John > The most well known case of jurisdictional immunity is of course for > organisations incorporated under international law. Unlike what has been > argued here variously, although international law has to be made by > governments through treaties etc that says nothing about the actual > governance structure of the concerned organisation, ICANN in this case. > International law can, to take an extreme case, hand over complete > governance of a body created/ incorporated under international law to you > and me... Nothing circumscribes how international law is written as long as all > countries agree to it. It is entirely possible, and I think extremely plausible, > that they would agree to write in such law the exact governance structure of > ICANN as it is at present. Right now too, ICANN exists by and under the > strength of its law of incorporation which is US law. In the scenario I present, > it would just be international law instead of US law. Yes, there are matters to > worked out in this regard, but if democracy and self-determination of all > people, equally, is of any importance at all, we can go through the process, > including doing the needed innovations as needed. The current international > system was not handed over to us by God, it was evolved by people like us, > who responded appropriately to newer and newer global challenges, as the > one that faces us now. To turn ones face away and say, nothing can be done > here, to evolve our democratic international systems, is to vote for a status > quo which serves some, but not others. And these are the others that are > protesting here, and seeking appropriate change. It is a political issue, lets not > treat it as a technical issue, of what is argued to be difficult or too > "troublesome" to pursue. > > Next, even without going the international law route, as has been said many > times earlier here, US law allows even non profits to be given jurisdictional > immunity. The concerned law is the United States International Organisations > Immunities Act<https://archive.icann.org/en/psc/annex9.pdf <https://archive.icann.org/en/psc/annex9.pdf>> . And an > example of a US non-profit being given jurisdiction immunity under it is > International Fertilizer and Development Center. This has been discussed in a > report commissioned by ICANN itself which can be found at > https://archive.icann.org/en/psc/corell-24aug06.html <https://archive.icann.org/en/psc/corell-24aug06.html> . > > I have been unable to understand why can we not agree to even jurisdictional > immunity under existing US law, which keeps ICANN in the US, preserves its > existing structures, and does go considerable way to address the concerns > about those who are concerned about application of US public law on ICANN, > and what it may mean for its global governance work. > > The argument is advanced that this may affect the operation of the newly > instituted community accountability mechanism. I dont think this is not true. > This mechanism is a matter of internal ICANN governance system, which is a > 'private' arrangement with choice of law available to it. It simply has to be put > in ICANN bylaws that ICANN governance processes will be subject to > adjudication by Californian courts as present. That should do. Of course the > mentioned International Fertilizer and Development Centre also must be > existing with some governance systems, that admit of external adjudication, > even as it enjoys the benefit of jurisdictional immunity from US public laws. > Such immunity always only pertains to the policy and such international core > activities of the concerned organisation, and associated matters. It would not, > for instance, extend to actual crime being committed by its personnel on its > premises. All such matters of various distinctions get taken care of when we > enter the actual processes of such immunities etc. Right now, the issue is only > to decide to go down the route, or not. > > parminder > > > > Best regards, > > John Laprise, Ph.D. > Consulting Scholar > > http://www.linkedin.com/in/jplaprise/ <http://www.linkedin.com/in/jplaprise/> > > > > From: accountability-cross-community- > bounces@icann.org <mailto:bounces@icann.org><mailto:accountability-cross-community- <mailto:accountability-cross-community-> > bounces@icann.org <mailto:bounces@icann.org>> [mailto:accountability-cross-community- <mailto:accountability-cross-community-> > bounces@icann.org <mailto:bounces@icann.org>] On Behalf Of parminder > Sent: Monday, December 19, 2016 7:10 AM > To: accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org><mailto:accountability-cross- <mailto:accountability-cross-> > community@icann.org <mailto:community@icann.org>> > Subject: Re: [CCWG-ACCT] Jurisdiction Proposed Questions and Poll Results > > > > > On Saturday 17 December 2016 12:40 AM, Mueller, Milton L wrote: > > SNIP > > John Laprise's wording was much, much better: > > "What are the advantages or disadvantages, if any, relating to changing > ICANN's jurisdiction*, particularly with regard to the actual operation of > ICANN's policies and accountability mechanisms?" > > This formulation does not include possibilities of jurisdictional immunity. > > Something like > > > > > "What are the advantages or disadvantages, if any, relating to changing > ICANN's jurisdiction*, or providing possible jurisdictional immunity, > particularly with regard to the actual operation of ICANN's policies and > accountability mechanisms?" > > would be better. > > parminder > > > > > > _______________________________________________ > > Accountability-Cross-Community mailing list > > Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org><mailto:Accountability-Cross- <mailto:Accountability-Cross-> > Community@icann.org <mailto:Community@icann.org>> > > https://mm.icann.org/mailman/listinfo/accountability-cross-community <https://mm.icann.org/mailman/listinfo/accountability-cross-community> > > > _______________________________________________ Accountability-Cross- > Community mailing list Accountability-Cross- > Community@icann.org <mailto:Community@icann.org><mailto:Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org>> > https://mm.icann.org/mailman/listinfo/accountability-cross-community <https://mm.icann.org/mailman/listinfo/accountability-cross-community> > _______________________________________________ > Accountability-Cross-Community mailing list Accountability-Cross- > Community@icann.org <mailto:Community@icann.org> > https://mm.icann.org/mailman/listinfo/accountability-cross-community <https://mm.icann.org/mailman/listinfo/accountability-cross-community> _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community <https://mm.icann.org/mailman/listinfo/accountability-cross-community>

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On Thursday 29 December 2016 10:24 AM, Mueller, Milton L wrote:

Parminder,

I am having trouble making sense of your message below. When you use verbal constructs like “I havent seen not only no attempt to explore ways to stop such influence by you,” I can only smile and ask you to untie the knots in your words (or thinking?) and rephrase the question more clearly.

Milton I have no problem in making it clearer to you, as long as you would then actually respond to the issue. When you say, "Supporters of the MS model and opponents of intergovernmentalism have legitimate reasons to investigate the impact of US jurisdiction, because the US is a global power with very specific foreign policy and military interests. US jurisdiction thus may have the potential to create opportunities for one government - the US - to have an inappropriate level of influence over ICANN's transnational, nonstate actor based governance processes." I just wanted to know what do you propose to do about this clearly identified jurisdiction problem? Further, if going down an international treaty route is problematic for you, do you think jurisdictional immunity under the International Organisations Immunities Act is a good way to address this jurisdictional problem? parminder

To quote you, Milton, "Supporters of the MS model and opponents of intergovernmentalism have legitimate reasons to investigate the impact of US jurisdiction, because the US is a global power with very specific foreign policy and military interests. US jurisdiction thus may have the potential to create opportunities for one government - the US - to have an inappropriate level of influence over ICANN's transnational, nonstate actor based governance processes."

I havent seen not only no attempt to explore ways to stop such influence by you, and many others here, but, much more problematically, strong resistance to anyone trying to do so. Now that you state the matter in this way, it does arouse curiosity about what kind of directions of exploration you yourself possibly see in this regard.

As for your next sentence "One can consider those issues without implying that ICANN's corporate HQ needs to move."

Yes, this is entirely true. Have been saying this for a long time but somehow hasnt had traction.

On Friday 30 December 2016 03:23 AM, Mueller, Milton L wrote:

Parminder said “I havent seen not only no attempt to explore ways to stop such influence by you, and many others here

Translated, it means:

I just wanted to know what do you propose to do about this clearly identified jurisdiction problem?

MM: First, it isn’t all that clearly identified. Other than OFAC, we need to explore the scenarios, if any, in which it might have impact.

You say OFAC issue is clear but not others..Others have listed <http://www.itforchange.net/sites/default/files/Jurisdiction%20of%20ICANN.pdf> OFAC plus non OFAC issues, which are a lot of groups. But lets say even with OFAC, what do you propose we do about it? BTW, I am sure you know the following passage in the GTLD handbook. It is clear that ICANN must and would comply with all US laws, rules and regulations, be it OFAC, intellectual property related, trade sanctions, FFC orders, any new laws not imagined till now, the new hypothetical Trump Act, whatever........................ Is this not an identification of a problem enough? I see it as a clearly identified problem, on solutions for whic hwe should be working, even without waiting for responses to our proposed questionnaire. GTLD Guidebook Version 2012-1-11 Legal Compliance -- ICANN must comply with all U.S. laws, rules, and regulations. One such set of regulations is the economic and trade sanctions program administered by the Office of Foreign Assets Control (OFAC) of the U.S. Department of the Treasury. These sanctions have been imposed on certain countries, as well as individuals and entities that appear on OFAC's List of Specially Designated Nationals and Blocked Persons (the SDN List). ICANN is prohibited from providing most goods or services to residents of sanctioned countries or their governmental entities or to SDNs without an applicable U.S. government authorization or exemption. ICANN generally will not seek a license to provide goods or services to an individual or entity on the SDN List. In the past, when ICANN has been requested to provide services to individuals or entities that are not SDNs, but are residents of sanctioned countries, ICANN has sought and been granted licenses as required. In any given case, however, OFAC could decide not to issue a requested license. The current Q4, as I have said, does a lousy job of this. Sure, but in all this long discussion you havent mentioned what kind of question will do a non-lousy job.

PS: Further, if going down an international treaty route is problematic for you, do you think jurisdictional immunity under the International Organisations Immunities Act is a good way to address this jurisdictional problem?

MM: International treaty would take decades, and given the irrationality of inter-state rivalries, seems unlikely ever to produce a good solution.

You have surely changed your views 180 degrees over the last 10 years, since when you had advocated, in 2005-06, for a governments negotiated "Framework convention on the Internet". That is ok, but others still do believe that the comity of nation states can achieve much. I dont see your global network of private contracts take up global governance, god forbid!

MM: The IOIA isn’t all that promising, keep in mind that to qualify as an “international organization” under that Act the US Congress has to recognize the organization as such and thus you would be bringing ICANN back under the authority of the US congress,

This is just some cheap intellectual dishonesty (this is for calling me "typically manipulative", in another email). Milton, are you trying to tell us that if the CCWG recommends that ICANN be given immunity under IOIA ONLY THEN would or can ICANN get subject to Congress!!!! And you call yourself a professor of policy studies or whatever!! The US congress can, if it so decides, right now eat ICANN with breakfast, with no invitation required, from CCWG, from the so called "Internet community", or from prof milton. What really do you mean to say that seeking immunity under IOIA will "bring ICANN back under the authority of the US congress"?? When did it go out of authority of US congress? It must take extra-ordinary intellectual dishonesty and disingenuity for a US prof of policy to tell us that trying to seek immunity from US jurisdiction, even if under a US law, will actually being ICANN "back under" US/ congress's authority/ jurisdiction....

which doesn’t seem so nice after the Republican takeover

As far as possible, I like not to talk about other countries' democratic choices . But it is your (US's) problem really! Why we should get thrown into this, who never voted this way or that-- majority of USians voted a particular way, and you are in a social contract together, and so just accept it. But why should we, non USiasn, have to go with what happens or does not happen to your Congress. Milton/ others, are you guys left with no feeling of democratic fraternity with the rest of the world at all - is this the level that we are getting reduced to.

and our experiences last September. Indeed, the IOIA was designed with state-based, diplomatic organizations in mind – it applies to the UN, the Holy See and the European Central Bank for example.

Now more than a dozen times I have given the example of International Fertilizer Development Center, as a US non profit under IOIA given immunity, and there are many others. Only yesterday I linked the entire list of orgs under IOIA immunity, many of them non IGOs. But you havent noticed it, yet, right. Try some intellectual honesty, Milton, a term you throw around a lot. Do you not see the hypocrisy here, but how can you, that would be a contradiction in terms.

So your holding up of this option is what drives Corwin’s sense that this debate is about whether ICANN turns into an IGO.

Should I write it on stamp paper with notary authentication and post it your home, that, no IOIA does not only give immunity to IGOs. It has given imunity to many non IGos. If you do not have a good argument dont just keep throwing around mis- representations.

Finally, the exemptions of the IOIA confer all kinds of immunities on the organization that we might not want, such as exemptions from property and income taxes (I know you are a big fan of those)

I thought ICANN is already exempted from income tax due to its non profit status. But, then certainly I do not want it to be paying tax to the US on income it makes from a global governance activity. Why should it?

and worse, immunity from lawsuits. Are you kidding me? You want ICANN to be immune from lawsuits?

So, Milton, you havent till now realised that the jurisdiction issue is about immunity from lawsuits, brought under the laws of one country, to which the rest of the world does not contribute? Yes, we do not want anyone to be able to challenge .ir or .africa, or a hypothetical Indian generic drugs company owned .Sunpharma. under US laws. Becuase these laws, and the US courts, apply the test of US public interest, not, or certainly in priority to, that of global Interest. All countries do it, there is no other way. That was always the whole point. parminder

Hello, I also don't see the logic in sending two questionnaires. There may be some logic in treating the responses to questions 1 to 3 separate from question 4, but we are not yet at that stage. It will be better the question is not added at all than to send it as a separate questionnaire. Overall I am indifferent about adding or not adding but since there is seemingly a lot of support to add, I don't see the significant harm it will cause by doing that[1]. Based on the response of the Co-Chairs to my question, I would suggest that it's better to let all the 4 questions be presented and let's see what issues emerge from their responses. Then we can start to do a few round trips to legal and hopefully remind ourselves the possible consequences of addressing certain issues in a particular way. Some of which has already been echoed during WS1. Regards 1. Nevermind that it could generate some political news/headlines but am sure this group is already used to that by now ;-) Sent from my LG G4 Kindly excuse brevity and typos On 26 Dec 2016 19:19, "avri doria" <avri@acm.org> wrote:

Hi,

Where we differ is on the idea of separating the questions into 2 questionnaires.

I think it is going to be hard enough to get people to pay attention to one questionnaire, asking them to do two is daunting. A fourth question will not test their patience in the same way another questionnaire would.

So with Kavouss I say:

...

Allow all 4 questions go out and then wait what will happens .

avri

On 26-Dec-16 11:42, Mueller, Milton L wrote:

...

...

-----Original Message----- At the same time, let us all try to return to a constructive and step-by-step approach, building on the progress made so far, in order to make progress on our mandate, established by the whole multistakeholder community back in Marrakech. I agree, and I think both Pedro's and Phil's position are based on some confusion of issues. It we calm down a bit and look at this more carefully we can make progress.

Pedro may be confusing the inclusion or exclusion of Question 4 in our initial request with the question of whether we explore issues in US jurisdiction at all. But excluding Question 4 from our initial request for information is not the same as a refusal to explore the questions it raises. I have proposed _separating_ Q4 from the other 3 questions, not eliminating it entirely. I proposed this not because I want to avoid the questions Q4 poses, but because I want those questions to be developed better and I want to avoid conflating it with the narrower questions about dispute resolution that Q's 1-3 were designed to address. It is a mistake to put those two things together. The information we gather from Q's 1-3 will suffer from their attachment to the potentially more controversial issues raised by Q4. Let me also add that the divisive insistence that this is a matter of US citizens vs non-US citizens needs to be dropped. Avri and myself, e.g., are both US citizens/residents and have serious concerns about possible intrusions of US foreign policy and other nationalistic and governmental concerns into ICANN matters. At the same time we are both staunch supporters of a nongovernmental model in this space and have no inherent objection to California law as ICANN's basis.

Phil Corwin on the other hand is confusing the issue of whether ICANN's corporate HQ is in California with the question of whether ICANN will be an intergovernmental entity. These questions have very little to do with each other. It is of course true that there are still a few people out there who would like for ICANN to become intergovernmental, but they are a tiny minority and the weight of history is totally against them. Put more bluntly, it ain't gonna happen. Supporters of the MS model and opponents of intergovernmentalism have legitimate reasons to investigate the impact of US jurisdiction, because the US is a global power with very specific foreign policy and military interests. US jurisdiction thus may have the potential to create opportunities for one government - the US - to have an inappropriate level of influence over ICANN's transnational, nonstate actor based governance processes. One can consider those issues without implying that ICANN's corporate HQ needs to move.

So let's stop making the status of Q4 a proxy for a long-settled war over whether ICANN is private or governmental, and let's stop pretending that those who want to separate the issues raised by Q4 from the narrower more focused issues in Q1-3 are trying to avoid legitimate issues.

As for creating a separate CCWG, are you kidding? This is the CCWG subgroup created specifically for jurisdictional issues and we don't make difficult issues easier to resolve by creating additional structures.

Dr. Milton L. Mueller Professor, School of Public Policy Georgia Institute of Technology

...

In this vein, and consistent with our conversation in Hyderabad, let us continue with the line directed to requesting input from the wider community.

The four questions developed so far will allow us to gather much needed input on facts, examples and well-founded opinions on the influence of ICANNs jurisdiction, taking into account its multiple layers, on its operations and accountability.

If we all are constructive and accept esch others' views as worthy of further discussion and study, we will be able to get this important step further.

Hence, let us please stay on the right track and finalize formulations of all four questions, and keep up the good spirit of cooperation.

with my best wishes for you all during the festivities

kind regards

Jorge

________________________________

Von: Pedro Ivo Ferraz da Silva <pedro.ivo@itamaraty.gov.br> Datum: 24. Dezember 2016 um 15:53:55 MEZ An: Greg Shatan <gregshatanipc@gmail.com>, parminder <parminder@itforchange.net>, Kavouss Arasteh <kavouss.arasteh@gmail.com> Cc: accountability-cross-community@icann.org <accountability-cross- community@icann.org> Betreff: [CCWG-ACCT] RES: Jurisdiction Proposed Questions and Poll Results

Dear CCWG-colleagues,

After reading some comments in this email thread, I must admit to be really disappointed.

Some of our colleagues in the CCWG seem to have forgotten - perhaps on purpose - that the topic of jurisdiction was allocated to WS2 as a result of a postponement, since the majority of this group thought it was not appropriate to deal with it in the pre-transition period due to time constraints. My government was not in favor of postponing the discussion on jurisdiction, as we consider it was - and remains - a fundamental aspect of a new ICANN truly governed by the multistakeholder community without any pre-conditions, but in respect to the viewpoint of the other colleagues, we agreed to move it to WS2.

Now that time has come to properly deal with this topic, it is quite frustrating to notice that some participants insist on limiting and/or procrastinating this debate, including by using the absurd argument that any discussion around jurisdiction cannot put into question any aspect already decided in WS1, which is embedded in the California law. We cannot see good faith in that kind of circular argument. In our view, the discussion around the inclusion or exclusion of Q.4 shows quite clearly that some of those who have fiercely objected to any jurisdiction debate during WS1 are maintaining their objection in WS2 as well. On that particular topic (Q.4) we concur with the view that upon deciding on institutional arrangements we should not only consider already occurred cases but also take into account logically strong possibilities. The responses to the questionnaire should thus help us to deal with all possibilities associate to jurisdiction. In case any unsubstantiated opinion will be received, it should be summarily discarded. From the various jurisdiction calls it became quite evident that a substantial part of the subgroup - mainly non-US - has great interest in examining and debating ways through which we can make sure that any issue associated to jurisdiction be addressed in a way compatible with the company's international remit of coordinating Internet public identifiers. In that context, I would like to highlight my government´s understanding that although the proposed questionnaire under discussion may provide us with some relevant factual information, it does not in any way cover all aspects of interest. We would like to refer, for example, to the list of issues compiled by Kavouss Arasteh as per his 13 December 2016 e-mail. We would also refer to questions that have continuously been asked by Parminder, apparently without any satisfactory answer. Those issues and questions include, for example, dispute settlement related topics, which demonstrates, in our view, that jurisdiction cannot be seen purely from businesses´ viewpoint. As someone has stated, we also need to look at the relationship between ICANN and third parties and adequately consider non-contracted Parties that might be affected by ICANN´s acts and/or omissions. From the perspective of the Brazilian government, the topics raised by Kavouss, Parminder and others are issues of particular interest which, needless to say, will not be adequately addressed through the mere analysis of the answers provided to the questionnaire, whether it includes Q.4 or not. My government has expressed its interest in pursuing discussion on jurisdiction through those angles many times - both during the IANA transition process and well before that. Other governments have done the same, as well as a sound number of civil society organizations around the globe. The "NETmundial Multistakeholder Statement", while calling for the internationalization of ICANN, clearly expresses this as well. Let me emphasize, by the way, that the NETmundial Statement calls for ICANN´s internationalization and not for it to become an intergovernmental organization. Those are two different notions that should not be confounded.

If this subgroup fails to deal with the multidimensional issues associated to jurisdiction properly , it may be applauded by some segments , but it will not contribute to putting in place a framework that will ensure the shared goal of making ICANN a legitimate entity in the eyes of all stakeholders, including governments. To achieve that, no issues should be discarded as "non important" or "not yet verified". While preserving the essence of what was achieved in WS1, innovative thinking, including on the part of persons with legal expertise, will be needed. Is it worth to wipe an important debate under the carpet just to comfort one or a few stakeholder groups while discontenting others? What kind of legitimacy is such a biased and limited exercise likely to have within the international community? .

It is time the subgroup - including the coChairs - make a honest assessment of the various viewpoints related to ICANN's jurisdiction and conduct the debate as openly as possible in order to address all the concerns and interests behind it.

Kind regards,

Sec. Pedro Ivo Ferraz da Silva Division of Information Society Ministry of Foreign Affairs - Brazil T: +55 61 2030-6609

________________________________ De: accountability-cross-community-bounces@icann.org [accountability- cross-community-bounces@icann.org] em nome de parminder [parminder@itforchange.net] Enviado: quinta-feira, 22 de dezembro de 2016 14:01 Para: Kavouss Arasteh; Greg Shatan Cc: accountability-cross-community@icann.org Assunto: Re: [CCWG-ACCT] Jurisdiction Proposed Questions and Poll Results

Dear Kavouss

You are right, we should first deal with the issue of the questionnaire.

I agree, as do many others, that there is no justification to remove the proposed Q 4 from the questionnaire. The question must go out along with others.

A question seeking information is only a question seeking information. People may chose to not respond to it, or give different responses, likely in opposition to one another. That is all very fine, and quite expected. But such forceful arguments to not ask for certain kinds of information is very disturbing, even alarming. (I have issues with how the other questions are framed, but I am fine to let them go out because some people want them to be posed.)

Ordinarily, if a good number of participants here wanted a question, that should be enough to include it. Here, a majority of those who voted on the issue of this particular question wanted the question included. That should have conclusively stopped the debate. But no, not so. There is persistent effort to censor this question. And this in a process that is advertised as open, transparent, collaborative, and what not. There is something very basically wrong here.

parminder

On Thursday 22 December 2016 07:20 PM, Kavouss Arasteh wrote: Dear John. Dear Parminder, It is difficult for me to conclude on any solution between the lines of your discussion. Could any of you kindly give a resume of the exchanged views. We need to look for some compromise solution knowing that some hard liners like x and y insist to impose their objections to send Q4.I continue to object to all questions until all 4 are agreed Nothing is agreed untill everything is agreed this is a Global multistakholder Group discussion and NOT North American Sub-Region multistakholder Group dominated by certain individuals Regards Kavouss

2016-12-22 13:06 GMT+01:00 parminder <parminder@itforchange.net<mailto:parminder@itforchange.net>>:

On Tuesday 20 December 2016 08:37 PM, John Laprise wrote: "To turn ones face away and say, nothing can be done here, to evolve our democratic international systems, is to vote for a status quo which serves some, but not others."

Rather, it is an acknowledgement of reality.

Apologies for appearing to be flippant, but isnt that what every status quo-ist says. Rule of law is neither globally strong nor evenly distributed. I can imagine a world in which the way forward you describe is plausible but, regrettably, it is not the one we live in. Other systems need strengthening and in some cases even existence before the way forward is open. It's not a vote for the status quo but a recognition of path dependency.

I am not asking for a violent deviation from the path - both options that I propose, a new international law and immunity under existing US Act carries forward the path-dependency, and completely safeguard the existing structures and processes of ICANN, the system I think you allude to as requiring strengthening. What I propose in fact further strengthens it, to a considerable extent. The ICANN system's current jurisdictional oversight by a single country is its biggest weak point in terms of international legitimacy. ( A point, unfortunately USians here seem not able to see and sympathise with.) Imagine an ICANN with immunity from US jurisdiction; how much legitimacy, and thus strength, it adds to the system.

Thanks for the back rounder Parminder. It was, along with some parallel research, quite helpful.

Thanks John, you are welcome.

The problem remains however that there is no analogous organization to ICANN merely in terms of its contractual authority.

Firstly, if we are hoping that a fully-developed, well-rounded solution, with everything fully covered by enough exact precedents, to this complex but very genuine problem, will simply one day drop in our laps, I assure you that this is not going to happen. We have to work for it, join the dots, take risks, make innovations, and so on. The point is, who is losing and gaining what from the present dispensation, and who is willing to do what is required to do.

Next, I see that organisations like International Fertilizer and Development Centre, which we cited as an example of an NPO given jurisdictional immunity, also does run many projects worldwide. Any such project would require use of a legal status, entering contracts, and so on.... We just need to look into it. But if we close our eyes, and simply refuse to explore options, we are not going to get anywhere. I am not saying this example will be an exact fit for our requirement, but we need to see what is possible, and innovate and evolve over it.

I'd also add that many of the benefits of the act are at the discretion of the US Secretary of State and can be revoked.

Yes, which is why immunity under US Act is less sustainable option than international law based immunity. But still better than the present condition. In the recent civil society statement on jurisdiction<http://www.itforchange.net/sites/default/ files/Jurisdiction%20of %20ICANN.pdf>, we also suggested a method whereby any such withdrawal of immunity can be made difficult/ ineffectual (see option 3 in the end).

The proposed jurisdictional immunity would also require all governments to sign off on such status, given ICANN's reach.

I dont see why so. Only US gov needs to agree.

I know that there is a significant literature on international compacts and law. Given the often decades long time frames for the passage and acceptance of such law, the Internet as we know it is unlikely to exist by the time it comes into force.

These are weak excuses. It can be done in 6 months. But in any case, if it satisfies those who want to move towards international jurisdiction, what do you lose in allowing to set in motion the process, esp if you think it would take forever to do anything. Let those who want have it. In the interim, status quo would stay.

To your question about why we do not discuss jurisdictional immunity under US law: it is because the domestic political reality of the situation makes such an eventuality so remote as to be hypothetical.

The same domestic situation makes the continuation of ICANN under US jurisdiction even less tenable.

This brings me to a very important point: the job of CCWG, working on behalf of the global community, is not to second guess what US gov will accept or not (unfortunately, that is what it has mostly done). If this was its real task, we as well may let US gov do what it may, instead of providing them the cover of legitimacy of the supposed will of the so called 'global community' which is what this process does. Our job is to recommend what we think in is best global interest, and is ordinarily plausible to do. This is what our job is, and we must just do that. Let US gov do its job - accept our recs or not. That burden is upon them - let s not take up their burden. This aspect of the work of the "community" groups involved in the transition process has always greatly bothered me. We must have clarity about - on whose behalf are we working (i think, for the global community, but you can clarify) and what our recs must be based on (I think, on our understanding of what is best for the global community, and not what we think US gov likes and would agree to, and what not, but again you can clarify)

The described quest is admirable but IMO is a non-starter. Conditions do not exist presently to make it a possible.

We are part of once in decades constitutional process about ICANN's structures. If it is not now, it is never.

parminder

Best regards,

John Laprise, Ph.D. Consulting Scholar

<http://www.linkedin.com/in/jplaprise/><http://www. linkedin.com/in/jplapri se/>http://www.linkedin.com/in/jplaprise/

From: parminder [<mailto:parminder@itforchange.net>mailto:parminder@itforchange.net] Sent: Tuesday, December 20, 2016 2:57 AM To: John Laprise <mailto:jlaprise@gmail.com> <jlaprise@gmail.com><mailto:jlaprise@gmail.com>; accountability-cross- community@icann.org<mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Jurisdiction Proposed Questions and Poll Results

On Monday 19 December 2016 08:14 PM, John Laprise wrote:

Possibilities of jurisdictional immunity? Could you please provide examples of organizations that enjoy such.

John The most well known case of jurisdictional immunity is of course for organisations incorporated under international law. Unlike what has been argued here variously, although international law has to be made by governments through treaties etc that says nothing about the actual governance structure of the concerned organisation, ICANN in this case. International law can, to take an extreme case, hand over complete governance of a body created/ incorporated under international law to you and me... Nothing circumscribes how international law is written as long as all countries agree to it. It is entirely possible, and I think extremely plausible, that they would agree to write in such law the exact governance structure of ICANN as it is at present. Right now too, ICANN exists by and under the strength of its law of incorporation which is US law. In the scenario I present, it would just be international law instead of US law. Yes, there are matters to worked out in this regard, but if democracy and self-determination of all people, equally, is of any importance at all, we can go through the process, including doing the needed innovations as needed. The current international system was not handed over to us by God, it was evolved by people like us, who responded appropriately to newer and newer global challenges, as the one that faces us now. To turn ones face away and say, nothing can be done here, to evolve our democratic international systems, is to vote for a status quo which serves some, but not others. And these are the others that are protesting here, and seeking appropriate change. It is a political issue, lets not treat it as a technical issue, of what is argued to be difficult or too "troublesome" to pursue.

Next, even without going the international law route, as has been said many times earlier here, US law allows even non profits to be given jurisdictional immunity. The concerned law is the United States International Organisations Immunities Act<https://archive.icann.org/en/psc/annex9.pdf> . And an example of a US non-profit being given jurisdiction immunity under it is International Fertilizer and Development Center. This has been discussed in a report commissioned by ICANN itself which can be found at https://archive.icann.org/en/psc/corell-24aug06.html .

I have been unable to understand why can we not agree to even jurisdictional immunity under existing US law, which keeps ICANN in the US, preserves its existing structures, and does go considerable way to address the concerns about those who are concerned about application of US public law on ICANN, and what it may mean for its global governance work.

The argument is advanced that this may affect the operation of the newly instituted community accountability mechanism. I dont think this is not true. This mechanism is a matter of internal ICANN governance system, which is a 'private' arrangement with choice of law available to it. It simply has to be put in ICANN bylaws that ICANN governance processes will be subject to adjudication by Californian courts as present. That should do. Of course the mentioned International Fertilizer and Development Centre also must be existing with some governance systems, that admit of external adjudication, even as it enjoys the benefit of jurisdictional immunity from US public laws. Such immunity always only pertains to the policy and such international core activities of the concerned organisation, and associated matters. It would not, for instance, extend to actual crime being committed by its personnel on its premises. All such matters of various distinctions get taken care of when we enter the actual processes of such immunities etc. Right now, the issue is only to decide to go down the route, or not.

parminder

Best regards,

John Laprise, Ph.D. Consulting Scholar

http://www.linkedin.com/in/jplaprise/

From: accountability-cross-community- bounces@icann.org<mailto:accountability-cross-community- bounces@icann.org> [mailto:accountability-cross-community- bounces@icann.org] On Behalf Of parminder Sent: Monday, December 19, 2016 7:10 AM To: accountability-cross-community@icann.org<mailto:acc ountability-cross- community@icann.org> Subject: Re: [CCWG-ACCT] Jurisdiction Proposed Questions and Poll Results

On Saturday 17 December 2016 12:40 AM, Mueller, Milton L wrote:

SNIP

John Laprise's wording was much, much better:

"What are the advantages or disadvantages, if any, relating to changing ICANN's jurisdiction*, particularly with regard to the actual operation of ICANN's policies and accountability mechanisms?"

This formulation does not include possibilities of jurisdictional immunity.

Something like

"What are the advantages or disadvantages, if any, relating to changing ICANN's jurisdiction*, or providing possible jurisdictional immunity, particularly with regard to the actual operation of ICANN's policies and accountability mechanisms?"

would be better.

parminder

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Grec, Tks Are you following the famous approach of "Consensus by exhaustion"? Kavouss 2016-12-27 8:56 GMT+01:00 Greg Shatan <gregshatanipc@gmail.com>:

All:

Two quick but important points:

1. We have strayed from the basic topic in front of us, which is to decide on the formulation of the questions to be sent out. I have gone through the emails and meeting notes and pulled the alternative formulations and revisions in to a single document, attached to this email.

With regard to question 4, I believe that the best way to move forward is to see if one of the alternatives gets stronger support within the CCWG. If we can get to a point where there is broad support for the question without significant opposition that may resolve issues relating to whether and when this question will be sent out.

2. Our overall agreed-upon working method is to first identify, discuss and arrive at a list of issues that raise concerns, and then move on to identifying, discussing and arriving at a list of potential remedies for each issue on our list. We are still working on issues. For a remedy to be up for discussion when we move to discussing remedies, that remedy needs to provide a solution to an issue. We can't discuss a potential remedy without having an issue it is intended to solve. If there is a potential "remedy" but it does not solve any of our issues, we won't discuss it.

We've already put aside one potential "remedy" until we see whether we identify any issues it would solve -- the "remedy" of changing ICANN's jurisdiction of incorporation or headquarters location. "Immunity" is another potential remedy that we need to deal with the same way. Skipping forward to discussions of remedies is only slowing down our discussion of issues. I strongly suggest we refocus on issues, so that we can get to the discussion of remedies. Once we've agreed on a list of issues, a discussion of remedies will be more productive.

Our working method of dealing with issues first and then remedies may also help us find agreement on a way to deal with question 4. Questions 1-3 clearly deal with issues. Perhaps a version of question 4 that is limited to asking for issues will get broader support ("Alternative 1" on the attachment may fit this description.)

Greg

On Mon, Dec 26, 2016 at 1:41 PM, Seun Ojedeji <seun.ojedeji@gmail.com> wrote:

...

Hello,

I also don't see the logic in sending two questionnaires. There may be some logic in treating the responses to questions 1 to 3 separate from question 4, but we are not yet at that stage. It will be better the question is not added at all than to send it as a separate questionnaire.

Overall I am indifferent about adding or not adding but since there is seemingly a lot of support to add, I don't see the significant harm it will cause by doing that[1]. Based on the response of the Co-Chairs to my question, I would suggest that it's better to let all the 4 questions be presented and let's see what issues emerge from their responses. Then we can start to do a few round trips to legal and hopefully remind ourselves the possible consequences of addressing certain issues in a particular way. Some of which has already been echoed during WS1.

Regards 1. Nevermind that it could generate some political news/headlines but am sure this group is already used to that by now ;-) Sent from my LG G4 Kindly excuse brevity and typos

On 26 Dec 2016 19:19, "avri doria" <avri@acm.org> wrote:

...

Hi,

Where we differ is on the idea of separating the questions into 2 questionnaires.

I think it is going to be hard enough to get people to pay attention to one questionnaire, asking them to do two is daunting. A fourth question will not test their patience in the same way another questionnaire would.

So with Kavouss I say:

...

Allow all 4 questions go out and then wait what will happens .

avri

On 26-Dec-16 11:42, Mueller, Milton L wrote:

...

...

-----Original Message----- At the same time, let us all try to return to a constructive and step-by-step approach, building on the progress made so far, in order to make progress on our mandate, established by the whole multistakeholder community back in Marrakech. I agree, and I think both Pedro's and Phil's position are based on some confusion of issues. It we calm down a bit and look at this more carefully we can make progress.

Pedro may be confusing the inclusion or exclusion of Question 4 in our initial request with the question of whether we explore issues in US jurisdiction at all. But excluding Question 4 from our initial request for information is not the same as a refusal to explore the questions it raises. I have proposed _separating_ Q4 from the other 3 questions, not eliminating it entirely. I proposed this not because I want to avoid the questions Q4 poses, but because I want those questions to be developed better and I want to avoid conflating it with the narrower questions about dispute resolution that Q's 1-3 were designed to address. It is a mistake to put those two things together. The information we gather from Q's 1-3 will suffer from their attachment to the potentially more controversial issues raised by Q4. Let me also add that the divisive insistence that this is a matter of US citizens vs non-US citizens needs to be dropped. Avri and myself, e.g., are both US citizens/residents and have serious concerns about possible intrusions of US foreign policy and other nationalistic and governmental concerns into ICANN matters. At the same time we are both staunch supporters of a nongovernmental model in this space and have no inherent objection to California law as ICANN's basis.

Phil Corwin on the other hand is confusing the issue of whether ICANN's corporate HQ is in California with the question of whether ICANN will be an intergovernmental entity. These questions have very little to do with each other. It is of course true that there are still a few people out there who would like for ICANN to become intergovernmental, but they are a tiny minority and the weight of history is totally against them. Put more bluntly, it ain't gonna happen. Supporters of the MS model and opponents of intergovernmentalism have legitimate reasons to investigate the impact of US jurisdiction, because the US is a global power with very specific foreign policy and military interests. US jurisdiction thus may have the potential to create opportunities for one government - the US - to have an inappropriate level of influence over ICANN's transnational, nonstate actor based governance processes. One can consider those issues without implying that ICANN's corporate HQ needs to move.

So let's stop making the status of Q4 a proxy for a long-settled war over whether ICANN is private or governmental, and let's stop pretending that those who want to separate the issues raised by Q4 from the narrower more focused issues in Q1-3 are trying to avoid legitimate issues.

As for creating a separate CCWG, are you kidding? This is the CCWG subgroup created specifically for jurisdictional issues and we don't make difficult issues easier to resolve by creating additional structures.

Dr. Milton L. Mueller Professor, School of Public Policy Georgia Institute of Technology

...

In this vein, and consistent with our conversation in Hyderabad, let us continue with the line directed to requesting input from the wider community.

The four questions developed so far will allow us to gather much needed input on facts, examples and well-founded opinions on the influence of ICANNs jurisdiction, taking into account its multiple layers, on its operations and accountability.

If we all are constructive and accept esch others' views as worthy of further discussion and study, we will be able to get this important step further.

Hence, let us please stay on the right track and finalize formulations of all four questions, and keep up the good spirit of cooperation.

with my best wishes for you all during the festivities

kind regards

Jorge

________________________________

Von: Pedro Ivo Ferraz da Silva <pedro.ivo@itamaraty.gov.br> Datum: 24. Dezember 2016 um 15:53:55 MEZ An: Greg Shatan <gregshatanipc@gmail.com>, parminder <parminder@itforchange.net>, Kavouss Arasteh <kavouss.arasteh@gmail.com> Cc: accountability-cross-community@icann.org <accountability-cross- community@icann.org> Betreff: [CCWG-ACCT] RES: Jurisdiction Proposed Questions and Poll Results

Dear CCWG-colleagues,

After reading some comments in this email thread, I must admit to be really disappointed.

Some of our colleagues in the CCWG seem to have forgotten - perhaps on purpose - that the topic of jurisdiction was allocated to WS2 as a result of a postponement, since the majority of this group thought it was not appropriate to deal with it in the pre-transition period due to time constraints. My government was not in favor of postponing the discussion on jurisdiction, as we consider it was - and remains - a fundamental aspect of a new ICANN truly governed by the multistakeholder community without any pre-conditions, but in respect to the viewpoint of the other colleagues, we agreed to move it to WS2.

Now that time has come to properly deal with this topic, it is quite frustrating to notice that some participants insist on limiting and/or procrastinating this debate, including by using the absurd argument that any discussion around jurisdiction cannot put into question any aspect already decided in WS1, which is embedded in the California law. We cannot see good faith in that kind of circular argument. In our view, the discussion around the inclusion or exclusion of Q.4 shows quite clearly that some of those who have fiercely objected to any jurisdiction debate during WS1 are maintaining their objection in WS2 as well. On that particular topic (Q.4) we concur with the view that upon deciding on institutional arrangements we should not only consider already occurred cases but also take into account logically strong possibilities. The responses to the questionnaire should thus help us to deal with all possibilities associate to jurisdiction. In case any unsubstantiated opinion will be received, it should be summarily discarded. From the various jurisdiction calls it became quite evident that a substantial part of the subgroup - mainly non-US - has great interest in examining and debating ways through which we can make sure that any issue associated to jurisdiction be addressed in a way compatible with the company's international remit of coordinating Internet public identifiers. In that context, I would like to highlight my government´s understanding that although the proposed questionnaire under discussion may provide us with some relevant factual information, it does not in any way cover all aspects of interest. We would like to refer, for example, to the list of issues compiled by Kavouss Arasteh as per his 13 December 2016 e-mail. We would also refer to questions that have continuously been asked by Parminder, apparently without any satisfactory answer. Those issues and questions include, for example, dispute settlement related topics, which demonstrates, in our view, that jurisdiction cannot be seen purely from businesses´ viewpoint. As someone has stated, we also need to look at the relationship between ICANN and third parties and adequately consider non-contracted Parties that might be affected by ICANN´s acts and/or omissions. From the perspective of the Brazilian government, the topics raised by Kavouss, Parminder and others are issues of particular interest which, needless to say, will not be adequately addressed through the mere analysis of the answers provided to the questionnaire, whether it includes Q.4 or not. My government has expressed its interest in pursuing discussion on jurisdiction through those angles many times - both during the IANA transition process and well before that. Other governments have done the same, as well as a sound number of civil society organizations around the globe. The "NETmundial Multistakeholder Statement", while calling for the internationalization of ICANN, clearly expresses this as well. Let me emphasize, by the way, that the NETmundial Statement calls for ICANN´s internationalization and not for it to become an intergovernmental organization. Those are two different notions that should not be confounded.

If this subgroup fails to deal with the multidimensional issues associated to jurisdiction properly , it may be applauded by some segments , but it will not contribute to putting in place a framework that will ensure the shared goal of making ICANN a legitimate entity in the eyes of all stakeholders, including governments. To achieve that, no issues should be discarded as "non important" or "not yet verified". While preserving the essence of what was achieved in WS1, innovative thinking, including on the part of persons with legal expertise, will be needed. Is it worth to wipe an important debate under the carpet just to comfort one or a few stakeholder groups while discontenting others? What kind of legitimacy is such a biased and limited exercise likely to have within the international community? .

It is time the subgroup - including the coChairs - make a honest assessment of the various viewpoints related to ICANN's jurisdiction and conduct the debate as openly as possible in order to address all the concerns and interests behind it.

Kind regards,

Sec. Pedro Ivo Ferraz da Silva Division of Information Society Ministry of Foreign Affairs - Brazil T: +55 61 2030-6609 <+55%2061%202030-6609>

________________________________ De: accountability-cross-community-bounces@icann.org [accountability- cross-community-bounces@icann.org] em nome de parminder [parminder@itforchange.net] Enviado: quinta-feira, 22 de dezembro de 2016 14:01 Para: Kavouss Arasteh; Greg Shatan Cc: accountability-cross-community@icann.org Assunto: Re: [CCWG-ACCT] Jurisdiction Proposed Questions and Poll Results

Dear Kavouss

You are right, we should first deal with the issue of the questionnaire.

I agree, as do many others, that there is no justification to remove the proposed Q 4 from the questionnaire. The question must go out along with others.

A question seeking information is only a question seeking information. People may chose to not respond to it, or give different responses, likely in opposition to one another. That is all very fine, and quite expected. But such forceful arguments to not ask for certain kinds of information is very disturbing, even alarming. (I have issues with how the other questions are framed, but I am fine to let them go out because some people want them to be posed.)

Ordinarily, if a good number of participants here wanted a question, that should be enough to include it. Here, a majority of those who voted on the issue of this particular question wanted the question included. That should have conclusively stopped the debate. But no, not so. There is persistent effort to censor this question. And this in a process that is advertised as open, transparent, collaborative, and what not. There is something very basically wrong here.

parminder

On Thursday 22 December 2016 07:20 PM, Kavouss Arasteh wrote: Dear John. Dear Parminder, It is difficult for me to conclude on any solution between the lines of your discussion. Could any of you kindly give a resume of the exchanged views. We need to look for some compromise solution knowing that some hard liners like x and y insist to impose their objections to send Q4.I continue to object to all questions until all 4 are agreed Nothing is agreed untill everything is agreed this is a Global multistakholder Group discussion and NOT North American Sub-Region multistakholder Group dominated by certain individuals Regards Kavouss

2016-12-22 13:06 GMT+01:00 parminder <parminder@itforchange.net<mailto:parminder@itforchange.net>>:

On Tuesday 20 December 2016 08:37 PM, John Laprise wrote: "To turn ones face away and say, nothing can be done here, to evolve our democratic international systems, is to vote for a status quo which serves some, but not others."

Rather, it is an acknowledgement of reality.

Apologies for appearing to be flippant, but isnt that what every status quo-ist says. Rule of law is neither globally strong nor evenly distributed. I can imagine a world in which the way forward you describe is plausible but, regrettably, it is not the one we live in. Other systems need strengthening and in some cases even existence before the way forward is open. It's not a vote for the status quo but a recognition of path dependency.

I am not asking for a violent deviation from the path - both options that I propose, a new international law and immunity under existing US Act carries forward the path-dependency, and completely safeguard the existing structures and processes of ICANN, the system I think you allude to as requiring strengthening. What I propose in fact further strengthens it, to a considerable extent. The ICANN system's current jurisdictional oversight by a single country is its biggest weak point in terms of international legitimacy. ( A point, unfortunately USians here seem not able to see and sympathise with.) Imagine an ICANN with immunity from US jurisdiction; how much legitimacy, and thus strength, it adds to the system.

Thanks for the back rounder Parminder. It was, along with some parallel research, quite helpful.

Thanks John, you are welcome.

The problem remains however that there is no analogous organization to ICANN merely in terms of its contractual authority.

Firstly, if we are hoping that a fully-developed, well-rounded solution, with everything fully covered by enough exact precedents, to this complex but very genuine problem, will simply one day drop in our laps, I assure you that this is not going to happen. We have to work for it, join the dots, take risks, make innovations, and so on. The point is, who is losing and gaining what from the present dispensation, and who is willing to do what is required to do.

Next, I see that organisations like International Fertilizer and Development Centre, which we cited as an example of an NPO given jurisdictional immunity, also does run many projects worldwide. Any such project would require use of a legal status, entering contracts, and so on.... We just need to look into it. But if we close our eyes, and simply refuse to explore options, we are not going to get anywhere. I am not saying this example will be an exact fit for our requirement, but we need to see what is possible, and innovate and evolve over it.

I'd also add that many of the benefits of the act are at the discretion of the US Secretary of State and can be revoked.

Yes, which is why immunity under US Act is less sustainable option than international law based immunity. But still better than the present condition. In the recent civil society statement on jurisdiction<http://www.itforchange.net/sites/default/files/ Jurisdiction%20of %20ICANN.pdf>, we also suggested a method whereby any such withdrawal of immunity can be made difficult/ ineffectual (see option 3 in the end).

The proposed jurisdictional immunity would also require all governments to sign off on such status, given ICANN's reach.

I dont see why so. Only US gov needs to agree.

I know that there is a significant literature on international compacts and law. Given the often decades long time frames for the passage and acceptance of such law, the Internet as we know it is unlikely to exist by the time it comes into force.

These are weak excuses. It can be done in 6 months. But in any case, if it satisfies those who want to move towards international jurisdiction, what do you lose in allowing to set in motion the process, esp if you think it would take forever to do anything. Let those who want have it. In the interim, status quo would stay.

To your question about why we do not discuss jurisdictional immunity under US law: it is because the domestic political reality of the situation makes such an eventuality so remote as to be hypothetical.

The same domestic situation makes the continuation of ICANN under US jurisdiction even less tenable.

This brings me to a very important point: the job of CCWG, working on behalf of the global community, is not to second guess what US gov will accept or not (unfortunately, that is what it has mostly done). If this was its real task, we as well may let US gov do what it may, instead of providing them the cover of legitimacy of the supposed will of the so called 'global community' which is what this process does. Our job is to recommend what we think in is best global interest, and is ordinarily plausible to do. This is what our job is, and we must just do that. Let US gov do its job - accept our recs or not. That burden is upon them - let s not take up their burden. This aspect of the work of the "community" groups involved in the transition process has always greatly bothered me. We must have clarity about - on whose behalf are we working (i think, for the global community, but you can clarify) and what our recs must be based on (I think, on our understanding of what is best for the global community, and not what we think US gov likes and would agree to, and what not, but again you can clarify)

The described quest is admirable but IMO is a non-starter. Conditions do not exist presently to make it a possible.

We are part of once in decades constitutional process about ICANN's structures. If it is not now, it is never.

parminder

Best regards,

John Laprise, Ph.D. Consulting Scholar

<http://www.linkedin.com/in/jplaprise/><http://www.linkedin. com/in/jplapri se/>http://www.linkedin.com/in/jplaprise/

From: parminder [<mailto:parminder@itforchange.net>mailto:parminder@itforchange.net] Sent: Tuesday, December 20, 2016 2:57 AM To: John Laprise <mailto:jlaprise@gmail.com> <jlaprise@gmail.com><mailto:jlaprise@gmail.com>; accountability-cross- community@icann.org<mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Jurisdiction Proposed Questions and Poll Results

On Monday 19 December 2016 08:14 PM, John Laprise wrote:

Possibilities of jurisdictional immunity? Could you please provide examples of organizations that enjoy such.

John The most well known case of jurisdictional immunity is of course for organisations incorporated under international law. Unlike what has been argued here variously, although international law has to be made by governments through treaties etc that says nothing about the actual governance structure of the concerned organisation, ICANN in this case. International law can, to take an extreme case, hand over complete governance of a body created/ incorporated under international law to you and me... Nothing circumscribes how international law is written as long as all countries agree to it. It is entirely possible, and I think extremely plausible, that they would agree to write in such law the exact governance structure of ICANN as it is at present. Right now too, ICANN exists by and under the strength of its law of incorporation which is US law. In the scenario I present, it would just be international law instead of US law. Yes, there are matters to worked out in this regard, but if democracy and self-determination of all people, equally, is of any importance at all, we can go through the process, including doing the needed innovations as needed. The current international system was not handed over to us by God, it was evolved by people like us, who responded appropriately to newer and newer global challenges, as the one that faces us now. To turn ones face away and say, nothing can be done here, to evolve our democratic international systems, is to vote for a status quo which serves some, but not others. And these are the others that are protesting here, and seeking appropriate change. It is a political issue, lets not treat it as a technical issue, of what is argued to be difficult or too "troublesome" to pursue.

Next, even without going the international law route, as has been said many times earlier here, US law allows even non profits to be given jurisdictional immunity. The concerned law is the United States International Organisations Immunities Act<https://archive.icann.org/en/psc/annex9.pdf> . And an example of a US non-profit being given jurisdiction immunity under it is International Fertilizer and Development Center. This has been discussed in a report commissioned by ICANN itself which can be found at https://archive.icann.org/en/psc/corell-24aug06.html .

I have been unable to understand why can we not agree to even jurisdictional immunity under existing US law, which keeps ICANN in the US, preserves its existing structures, and does go considerable way to address the concerns about those who are concerned about application of US public law on ICANN, and what it may mean for its global governance work.

The argument is advanced that this may affect the operation of the newly instituted community accountability mechanism. I dont think this is not true. This mechanism is a matter of internal ICANN governance system, which is a 'private' arrangement with choice of law available to it. It simply has to be put in ICANN bylaws that ICANN governance processes will be subject to adjudication by Californian courts as present. That should do. Of course the mentioned International Fertilizer and Development Centre also must be existing with some governance systems, that admit of external adjudication, even as it enjoys the benefit of jurisdictional immunity from US public laws. Such immunity always only pertains to the policy and such international core activities of the concerned organisation, and associated matters. It would not, for instance, extend to actual crime being committed by its personnel on its premises. All such matters of various distinctions get taken care of when we enter the actual processes of such immunities etc. Right now, the issue is only to decide to go down the route, or not.

parminder

Best regards,

John Laprise, Ph.D. Consulting Scholar

http://www.linkedin.com/in/jplaprise/

From: accountability-cross-community- bounces@icann.org<mailto:accountability-cross-community- bounces@icann.org> [mailto:accountability-cross-community- bounces@icann.org] On Behalf Of parminder Sent: Monday, December 19, 2016 7:10 AM To: accountability-cross-community@icann.org<mailto:accountabili ty-cross- community@icann.org> Subject: Re: [CCWG-ACCT] Jurisdiction Proposed Questions and Poll Results

On Saturday 17 December 2016 12:40 AM, Mueller, Milton L wrote:

SNIP

John Laprise's wording was much, much better:

"What are the advantages or disadvantages, if any, relating to changing ICANN's jurisdiction*, particularly with regard to the actual operation of ICANN's policies and accountability mechanisms?"

This formulation does not include possibilities of jurisdictional immunity.

Something like

"What are the advantages or disadvantages, if any, relating to changing ICANN's jurisdiction*, or providing possible jurisdictional immunity, particularly with regard to the actual operation of ICANN's policies and accountability mechanisms?"

would be better.

parminder

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Grec, Tks again, As I said I believe ,it is counter productive to discuss many alternative, I could agree with formulation of Parminder Regards Kavouss 2016-12-27 12:51 GMT+01:00 parminder <parminder@itforchange.net>:

Greg/ All

I think the Alternative 1, which you take as likely candidate for broader support, is fine. I list this formulation below:

What are the advantages or disadvantages, if any, relating to ICANN's jurisdiction*, particularly with regard to the actual operation of ICANN’s policies and accountability mechanisms? Please support your response with appropriate examples, references to specific laws, case studies, other studies, and analysis. In particular, please indicate if there are current or past instances that highlight such advantages or problems.

(* For these questions, “ICANN’s jurisdiction” refers to (a) ICANN being subject to U.S. and California law as a result of its incorporation and location in California, (b) ICANN being subject to the laws of any other country as a result of its location within or contacts with that country, or (c) any “choice of law” or venue provisions in agreements with ICANN.)

ENDS

Lets move on with it. We are spending too much time on framing a question.

parminder

On Tuesday 27 December 2016 01:26 PM, Greg Shatan wrote:

All:

Two quick but important points:

1. We have strayed from the basic topic in front of us, which is to decide on the formulation of the questions to be sent out. I have gone through the emails and meeting notes and pulled the alternative formulations and revisions in to a single document, attached to this email.

With regard to question 4, I believe that the best way to move forward is to see if one of the alternatives gets stronger support within the CCWG. If we can get to a point where there is broad support for the question without significant opposition that may resolve issues relating to whether and when this question will be sent out.

2. Our overall agreed-upon working method is to first identify, discuss and arrive at a list of issues that raise concerns, and then move on to identifying, discussing and arriving at a list of potential remedies for each issue on our list. We are still working on issues. For a remedy to be up for discussion when we move to discussing remedies, that remedy needs to provide a solution to an issue. We can't discuss a potential remedy without having an issue it is intended to solve. If there is a potential "remedy" but it does not solve any of our issues, we won't discuss it.

We've already put aside one potential "remedy" until we see whether we identify any issues it would solve -- the "remedy" of changing ICANN's jurisdiction of incorporation or headquarters location. "Immunity" is another potential remedy that we need to deal with the same way. Skipping forward to discussions of remedies is only slowing down our discussion of issues. I strongly suggest we refocus on issues, so that we can get to the discussion of remedies. Once we've agreed on a list of issues, a discussion of remedies will be more productive.

Our working method of dealing with issues first and then remedies may also help us find agreement on a way to deal with question 4. Questions 1-3 clearly deal with issues. Perhaps a version of question 4 that is limited to asking for issues will get broader support ("Alternative 1" on the attachment may fit this description.)

Greg

On Mon, Dec 26, 2016 at 1:41 PM, Seun Ojedeji <seun.ojedeji@gmail.com> wrote:

...

Hello,

I also don't see the logic in sending two questionnaires. There may be some logic in treating the responses to questions 1 to 3 separate from question 4, but we are not yet at that stage. It will be better the question is not added at all than to send it as a separate questionnaire.

Overall I am indifferent about adding or not adding but since there is seemingly a lot of support to add, I don't see the significant harm it will cause by doing that[1]. Based on the response of the Co-Chairs to my question, I would suggest that it's better to let all the 4 questions be presented and let's see what issues emerge from their responses. Then we can start to do a few round trips to legal and hopefully remind ourselves the possible consequences of addressing certain issues in a particular way. Some of which has already been echoed during WS1.

Regards 1. Nevermind that it could generate some political news/headlines but am sure this group is already used to that by now ;-) Sent from my LG G4 Kindly excuse brevity and typos

On 26 Dec 2016 19:19, "avri doria" <avri@acm.org> wrote:

...

Hi,

Where we differ is on the idea of separating the questions into 2 questionnaires.

I think it is going to be hard enough to get people to pay attention to one questionnaire, asking them to do two is daunting. A fourth question will not test their patience in the same way another questionnaire would.

So with Kavouss I say:

...

Allow all 4 questions go out and then wait what will happens .

avri

On 26-Dec-16 11:42, Mueller, Milton L wrote:

...

...

-----Original Message----- At the same time, let us all try to return to a constructive and step-by-step approach, building on the progress made so far, in order to make progress on our mandate, established by the whole multistakeholder community back in Marrakech. I agree, and I think both Pedro's and Phil's position are based on some confusion of issues. It we calm down a bit and look at this more carefully we can make progress.

Pedro may be confusing the inclusion or exclusion of Question 4 in our initial request with the question of whether we explore issues in US jurisdiction at all. But excluding Question 4 from our initial request for information is not the same as a refusal to explore the questions it raises. I have proposed _separating_ Q4 from the other 3 questions, not eliminating it entirely. I proposed this not because I want to avoid the questions Q4 poses, but because I want those questions to be developed better and I want to avoid conflating it with the narrower questions about dispute resolution that Q's 1-3 were designed to address. It is a mistake to put those two things together. The information we gather from Q's 1-3 will suffer from their attachment to the potentially more controversial issues raised by Q4. Let me also add that the divisive insistence that this is a matter of US citizens vs non-US citizens needs to be dropped. Avri and myself, e.g., are both US citizens/residents and have serious concerns about possible intrusions of US foreign policy and other nationalistic and governmental concerns into ICANN matters. At the same time we are both staunch supporters of a nongovernmental model in this space and have no inherent objection to California law as ICANN's basis.

Phil Corwin on the other hand is confusing the issue of whether ICANN's corporate HQ is in California with the question of whether ICANN will be an intergovernmental entity. These questions have very little to do with each other. It is of course true that there are still a few people out there who would like for ICANN to become intergovernmental, but they are a tiny minority and the weight of history is totally against them. Put more bluntly, it ain't gonna happen. Supporters of the MS model and opponents of intergovernmentalism have legitimate reasons to investigate the impact of US jurisdiction, because the US is a global power with very specific foreign policy and military interests. US jurisdiction thus may have the potential to create opportunities for one government - the US - to have an inappropriate level of influence over ICANN's transnational, nonstate actor based governance processes. One can consider those issues without implying that ICANN's corporate HQ needs to move.

So let's stop making the status of Q4 a proxy for a long-settled war over whether ICANN is private or governmental, and let's stop pretending that those who want to separate the issues raised by Q4 from the narrower more focused issues in Q1-3 are trying to avoid legitimate issues.

As for creating a separate CCWG, are you kidding? This is the CCWG subgroup created specifically for jurisdictional issues and we don't make difficult issues easier to resolve by creating additional structures.

Dr. Milton L. Mueller Professor, School of Public Policy Georgia Institute of Technology

...

In this vein, and consistent with our conversation in Hyderabad, let us continue with the line directed to requesting input from the wider community.

The four questions developed so far will allow us to gather much needed input on facts, examples and well-founded opinions on the influence of ICANNs jurisdiction, taking into account its multiple layers, on its operations and accountability.

If we all are constructive and accept esch others' views as worthy of further discussion and study, we will be able to get this important step further.

Hence, let us please stay on the right track and finalize formulations of all four questions, and keep up the good spirit of cooperation.

with my best wishes for you all during the festivities

kind regards

Jorge

________________________________

Von: Pedro Ivo Ferraz da Silva <pedro.ivo@itamaraty.gov.br> Datum: 24. Dezember 2016 um 15:53:55 MEZ An: Greg Shatan <gregshatanipc@gmail.com>, parminder <parminder@itforchange.net>, Kavouss Arasteh <kavouss.arasteh@gmail.com> Cc: accountability-cross-community@icann.org <accountability-cross- community@icann.org> Betreff: [CCWG-ACCT] RES: Jurisdiction Proposed Questions and Poll Results

Dear CCWG-colleagues,

After reading some comments in this email thread, I must admit to be really disappointed.

Some of our colleagues in the CCWG seem to have forgotten - perhaps on purpose - that the topic of jurisdiction was allocated to WS2 as a result of a postponement, since the majority of this group thought it was not appropriate to deal with it in the pre-transition period due to time constraints. My government was not in favor of postponing the discussion on jurisdiction, as we consider it was - and remains - a fundamental aspect of a new ICANN truly governed by the multistakeholder community without any pre-conditions, but in respect to the viewpoint of the other colleagues, we agreed to move it to WS2.

Now that time has come to properly deal with this topic, it is quite frustrating to notice that some participants insist on limiting and/or procrastinating this debate, including by using the absurd argument that any discussion around jurisdiction cannot put into question any aspect already decided in WS1, which is embedded in the California law. We cannot see good faith in that kind of circular argument. In our view, the discussion around the inclusion or exclusion of Q.4 shows quite clearly that some of those who have fiercely objected to any jurisdiction debate during WS1 are maintaining their objection in WS2 as well. On that particular topic (Q.4) we concur with the view that upon deciding on institutional arrangements we should not only consider already occurred cases but also take into account logically strong possibilities. The responses to the questionnaire should thus help us to deal with all possibilities associate to jurisdiction. In case any unsubstantiated opinion will be received, it should be summarily discarded. From the various jurisdiction calls it became quite evident that a substantial part of the subgroup - mainly non-US - has great interest in examining and debating ways through which we can make sure that any issue associated to jurisdiction be addressed in a way compatible with the company's international remit of coordinating Internet public identifiers. In that context, I would like to highlight my government´s understanding that although the proposed questionnaire under discussion may provide us with some relevant factual information, it does not in any way cover all aspects of interest. We would like to refer, for example, to the list of issues compiled by Kavouss Arasteh as per his 13 December 2016 e-mail. We would also refer to questions that have continuously been asked by Parminder, apparently without any satisfactory answer. Those issues and questions include, for example, dispute settlement related topics, which demonstrates, in our view, that jurisdiction cannot be seen purely from businesses´ viewpoint. As someone has stated, we also need to look at the relationship between ICANN and third parties and adequately consider non-contracted Parties that might be affected by ICANN´s acts and/or omissions. From the perspective of the Brazilian government, the topics raised by Kavouss, Parminder and others are issues of particular interest which, needless to say, will not be adequately addressed through the mere analysis of the answers provided to the questionnaire, whether it includes Q.4 or not. My government has expressed its interest in pursuing discussion on jurisdiction through those angles many times - both during the IANA transition process and well before that. Other governments have done the same, as well as a sound number of civil society organizations around the globe. The "NETmundial Multistakeholder Statement", while calling for the internationalization of ICANN, clearly expresses this as well. Let me emphasize, by the way, that the NETmundial Statement calls for ICANN´s internationalization and not for it to become an intergovernmental organization. Those are two different notions that should not be confounded.

If this subgroup fails to deal with the multidimensional issues associated to jurisdiction properly , it may be applauded by some segments , but it will not contribute to putting in place a framework that will ensure the shared goal of making ICANN a legitimate entity in the eyes of all stakeholders, including governments. To achieve that, no issues should be discarded as "non important" or "not yet verified". While preserving the essence of what was achieved in WS1, innovative thinking, including on the part of persons with legal expertise, will be needed. Is it worth to wipe an important debate under the carpet just to comfort one or a few stakeholder groups while discontenting others? What kind of legitimacy is such a biased and limited exercise likely to have within the international community? .

It is time the subgroup - including the coChairs - make a honest assessment of the various viewpoints related to ICANN's jurisdiction and conduct the debate as openly as possible in order to address all the concerns and interests behind it.

Kind regards,

Sec. Pedro Ivo Ferraz da Silva Division of Information Society Ministry of Foreign Affairs - Brazil T: +55 61 2030-6609 <+55%2061%202030-6609>

________________________________ De: accountability-cross-community-bounces@icann.org [accountability- cross-community-bounces@icann.org] em nome de parminder [parminder@itforchange.net] Enviado: quinta-feira, 22 de dezembro de 2016 14:01 Para: Kavouss Arasteh; Greg Shatan Cc: accountability-cross-community@icann.org Assunto: Re: [CCWG-ACCT] Jurisdiction Proposed Questions and Poll Results

Dear Kavouss

You are right, we should first deal with the issue of the questionnaire.

I agree, as do many others, that there is no justification to remove the proposed Q 4 from the questionnaire. The question must go out along with others.

A question seeking information is only a question seeking information. People may chose to not respond to it, or give different responses, likely in opposition to one another. That is all very fine, and quite expected. But such forceful arguments to not ask for certain kinds of information is very disturbing, even alarming. (I have issues with how the other questions are framed, but I am fine to let them go out because some people want them to be posed.)

Ordinarily, if a good number of participants here wanted a question, that should be enough to include it. Here, a majority of those who voted on the issue of this particular question wanted the question included. That should have conclusively stopped the debate. But no, not so. There is persistent effort to censor this question. And this in a process that is advertised as open, transparent, collaborative, and what not. There is something very basically wrong here.

parminder

On Thursday 22 December 2016 07:20 PM, Kavouss Arasteh wrote: Dear John. Dear Parminder, It is difficult for me to conclude on any solution between the lines of your discussion. Could any of you kindly give a resume of the exchanged views. We need to look for some compromise solution knowing that some hard liners like x and y insist to impose their objections to send Q4.I continue to object to all questions until all 4 are agreed Nothing is agreed untill everything is agreed this is a Global multistakholder Group discussion and NOT North American Sub-Region multistakholder Group dominated by certain individuals Regards Kavouss

2016-12-22 13:06 GMT+01:00 parminder <parminder@itforchange.net<mailto:parminder@itforchange.net>>:

On Tuesday 20 December 2016 08:37 PM, John Laprise wrote: "To turn ones face away and say, nothing can be done here, to evolve our democratic international systems, is to vote for a status quo which serves some, but not others."

Rather, it is an acknowledgement of reality.

Apologies for appearing to be flippant, but isnt that what every status quo-ist says. Rule of law is neither globally strong nor evenly distributed. I can imagine a world in which the way forward you describe is plausible but, regrettably, it is not the one we live in. Other systems need strengthening and in some cases even existence before the way forward is open. It's not a vote for the status quo but a recognition of path dependency.

I am not asking for a violent deviation from the path - both options that I propose, a new international law and immunity under existing US Act carries forward the path-dependency, and completely safeguard the existing structures and processes of ICANN, the system I think you allude to as requiring strengthening. What I propose in fact further strengthens it, to a considerable extent. The ICANN system's current jurisdictional oversight by a single country is its biggest weak point in terms of international legitimacy. ( A point, unfortunately USians here seem not able to see and sympathise with.) Imagine an ICANN with immunity from US jurisdiction; how much legitimacy, and thus strength, it adds to the system.

Thanks for the back rounder Parminder. It was, along with some parallel research, quite helpful.

Thanks John, you are welcome.

The problem remains however that there is no analogous organization to ICANN merely in terms of its contractual authority.

Firstly, if we are hoping that a fully-developed, well-rounded solution, with everything fully covered by enough exact precedents, to this complex but very genuine problem, will simply one day drop in our laps, I assure you that this is not going to happen. We have to work for it, join the dots, take risks, make innovations, and so on. The point is, who is losing and gaining what from the present dispensation, and who is willing to do what is required to do.

Next, I see that organisations like International Fertilizer and Development Centre, which we cited as an example of an NPO given jurisdictional immunity, also does run many projects worldwide. Any such project would require use of a legal status, entering contracts, and so on.... We just need to look into it. But if we close our eyes, and simply refuse to explore options, we are not going to get anywhere. I am not saying this example will be an exact fit for our requirement, but we need to see what is possible, and innovate and evolve over it.

I'd also add that many of the benefits of the act are at the discretion of the US Secretary of State and can be revoked.

Yes, which is why immunity under US Act is less sustainable option than international law based immunity. But still better than the present condition. In the recent civil society statement on jurisdiction<http://www.itforchange.net/sites/default/files/ Jurisdiction%20of %20ICANN.pdf>, we also suggested a method whereby any such withdrawal of immunity can be made difficult/ ineffectual (see option 3 in the end).

The proposed jurisdictional immunity would also require all governments to sign off on such status, given ICANN's reach.

I dont see why so. Only US gov needs to agree.

I know that there is a significant literature on international compacts and law. Given the often decades long time frames for the passage and acceptance of such law, the Internet as we know it is unlikely to exist by the time it comes into force.

These are weak excuses. It can be done in 6 months. But in any case, if it satisfies those who want to move towards international jurisdiction, what do you lose in allowing to set in motion the process, esp if you think it would take forever to do anything. Let those who want have it. In the interim, status quo would stay.

To your question about why we do not discuss jurisdictional immunity under US law: it is because the domestic political reality of the situation makes such an eventuality so remote as to be hypothetical.

The same domestic situation makes the continuation of ICANN under US jurisdiction even less tenable.

This brings me to a very important point: the job of CCWG, working on behalf of the global community, is not to second guess what US gov will accept or not (unfortunately, that is what it has mostly done). If this was its real task, we as well may let US gov do what it may, instead of providing them the cover of legitimacy of the supposed will of the so called 'global community' which is what this process does. Our job is to recommend what we think in is best global interest, and is ordinarily plausible to do. This is what our job is, and we must just do that. Let US gov do its job - accept our recs or not. That burden is upon them - let s not take up their burden. This aspect of the work of the "community" groups involved in the transition process has always greatly bothered me. We must have clarity about - on whose behalf are we working (i think, for the global community, but you can clarify) and what our recs must be based on (I think, on our understanding of what is best for the global community, and not what we think US gov likes and would agree to, and what not, but again you can clarify)

The described quest is admirable but IMO is a non-starter. Conditions do not exist presently to make it a possible.

We are part of once in decades constitutional process about ICANN's structures. If it is not now, it is never.

parminder

Best regards,

John Laprise, Ph.D. Consulting Scholar

<http://www.linkedin.com/in/jplaprise/><http://www.linkedin. com/in/jplapri se/>http://www.linkedin.com/in/jplaprise/

From: parminder [<mailto:parminder@itforchange.net>mailto:parminder@itforchange.net] Sent: Tuesday, December 20, 2016 2:57 AM To: John Laprise <mailto:jlaprise@gmail.com> <jlaprise@gmail.com><mailto:jlaprise@gmail.com>; accountability-cross- community@icann.org<mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Jurisdiction Proposed Questions and Poll Results

On Monday 19 December 2016 08:14 PM, John Laprise wrote:

Possibilities of jurisdictional immunity? Could you please provide examples of organizations that enjoy such.

John The most well known case of jurisdictional immunity is of course for organisations incorporated under international law. Unlike what has been argued here variously, although international law has to be made by governments through treaties etc that says nothing about the actual governance structure of the concerned organisation, ICANN in this case. International law can, to take an extreme case, hand over complete governance of a body created/ incorporated under international law to you and me... Nothing circumscribes how international law is written as long as all countries agree to it. It is entirely possible, and I think extremely plausible, that they would agree to write in such law the exact governance structure of ICANN as it is at present. Right now too, ICANN exists by and under the strength of its law of incorporation which is US law. In the scenario I present, it would just be international law instead of US law. Yes, there are matters to worked out in this regard, but if democracy and self-determination of all people, equally, is of any importance at all, we can go through the process, including doing the needed innovations as needed. The current international system was not handed over to us by God, it was evolved by people like us, who responded appropriately to newer and newer global challenges, as the one that faces us now. To turn ones face away and say, nothing can be done here, to evolve our democratic international systems, is to vote for a status quo which serves some, but not others. And these are the others that are protesting here, and seeking appropriate change. It is a political issue, lets not treat it as a technical issue, of what is argued to be difficult or too "troublesome" to pursue.

Next, even without going the international law route, as has been said many times earlier here, US law allows even non profits to be given jurisdictional immunity. The concerned law is the United States International Organisations Immunities Act<https://archive.icann.org/en/psc/annex9.pdf> . And an example of a US non-profit being given jurisdiction immunity under it is International Fertilizer and Development Center. This has been discussed in a report commissioned by ICANN itself which can be found at https://archive.icann.org/en/psc/corell-24aug06.html .

I have been unable to understand why can we not agree to even jurisdictional immunity under existing US law, which keeps ICANN in the US, preserves its existing structures, and does go considerable way to address the concerns about those who are concerned about application of US public law on ICANN, and what it may mean for its global governance work.

The argument is advanced that this may affect the operation of the newly instituted community accountability mechanism. I dont think this is not true. This mechanism is a matter of internal ICANN governance system, which is a 'private' arrangement with choice of law available to it. It simply has to be put in ICANN bylaws that ICANN governance processes will be subject to adjudication by Californian courts as present. That should do. Of course the mentioned International Fertilizer and Development Centre also must be existing with some governance systems, that admit of external adjudication, even as it enjoys the benefit of jurisdictional immunity from US public laws. Such immunity always only pertains to the policy and such international core activities of the concerned organisation, and associated matters. It would not, for instance, extend to actual crime being committed by its personnel on its premises. All such matters of various distinctions get taken care of when we enter the actual processes of such immunities etc. Right now, the issue is only to decide to go down the route, or not.

parminder

Best regards,

John Laprise, Ph.D. Consulting Scholar

http://www.linkedin.com/in/jplaprise/

From: accountability-cross-community- bounces@icann.org<mailto:accountability-cross-community- bounces@icann.org> [mailto:accountability-cross-community- bounces@icann.org] On Behalf Of parminder Sent: Monday, December 19, 2016 7:10 AM To: accountability-cross-community@icann.org<mailto:accountabili ty-cross- community@icann.org> Subject: Re: [CCWG-ACCT] Jurisdiction Proposed Questions and Poll Results

On Saturday 17 December 2016 12:40 AM, Mueller, Milton L wrote:

SNIP

John Laprise's wording was much, much better:

"What are the advantages or disadvantages, if any, relating to changing ICANN's jurisdiction*, particularly with regard to the actual operation of ICANN's policies and accountability mechanisms?"

This formulation does not include possibilities of jurisdictional immunity.

Something like

"What are the advantages or disadvantages, if any, relating to changing ICANN's jurisdiction*, or providing possible jurisdictional immunity, particularly with regard to the actual operation of ICANN's policies and accountability mechanisms?"

would be better.

parminder

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Greg, Thank you for presenting alternatives for reaching agreement on a/Roadmap for Moving Forward to identify operational issues embedded in the overall “jurisdiction” issue/. It is important to recognize that what is being proposed is the choice of roadmap for moving forward. Where this takes us will flow from the assembly of evidence, the application of analysis, and the resulting array of possible options for addressing jurisdiction base operational issues. Sam Lanfranco On 12/27/2016 2:56 AM, Greg Shatan wrote:

All:

Two quick but important points:

1. We have strayed from the basic topic in front of us, which is to decide on the formulation of the questions to be sent out. I have gone through the emails and meeting notes and pulled the alternative formulations and revisions in to a single document, attached to this email.

With regard to question 4, I believe that the best way to move forward is to see if one of the alternatives gets stronger support within the CCWG. If we can get to a point where there is broad support for the question without significant opposition that may resolve issues relating to whether and when this question will be sent out.

2. Our overall agreed-upon working method is to first identify, discuss and arrive at a list of issues that raise concerns, and then move on to identifying, discussing and arriving at a list of potential remedies for each issue on our list. We are still working on issues. For a remedy to be up for discussion when we move to discussing remedies, that remedy needs to provide a solution to an issue. We can't discuss a potential remedy without having an issue it is intended to solve. If there is a potential "remedy" but it does not solve any of our issues, we won't discuss it.

We've already put aside one potential "remedy" until we see whether we identify any issues it would solve -- the "remedy" of changing ICANN's jurisdiction of incorporation or headquarters location. "Immunity" is another potential remedy that we need to deal with the same way. Skipping forward to discussions of remedies is only slowing down our discussion of issues. I strongly suggest we refocus on issues, so that we can get to the discussion of remedies. Once we've agreed on a list of issues, a discussion of remedies will be more productive.

Our working method of dealing with issues first and then remedies may also help us find agreement on a way to deal with question 4. Questions 1-3 clearly deal with issues. Perhaps a version of question 4 that is limited to asking for issues will get broader support ("Alternative 1" on the attachment may fit this description.)

Greg

<rest deleted> -- ------------------------------------------------ "It is a disgrace to be rich and honoured in an unjust state" -Confucius 邦有道，贫且贱焉，耻也。邦无道，富且贵焉，耻也 ------------------------------------------------ Dr Sam Lanfranco (Prof Emeritus & Senior Scholar) Econ, York U., Toronto, Ontario, CANADA - M3J 1P3 email: Lanfran@Yorku.ca Skype: slanfranco blog: https://samlanfranco.blogspot.com Phone: +1 613-476-0429 cell: +1 416-816-2852

Let me correct Pedro and Philip. At least in its English version, there is NO call for "internationalization of ICANN" in the Netmundial statement. There is a call for "globalization" of ICANN: 6. It is expected that the process of globalization of ICANN speeds up leading to a truly international and global organization serving the public interest with clearly implementable and verifiable accountability and transparency mechanisms that satisfy requirements from both internal stakeholders and the global community. True, the final statement refers to a "truly international and global organization" in additional to a call for globalization, and the conjunction of "international" and "global" was probably some kind of compromise reached between the likes of Pedro and myself. But note that the Montevideo Statement, which preceded the Netmundial statement, also called for globalization of IANA. The idea of globalization is distinct from internationalization in that it implies a jurisdiction that does not involve national borders at all (appropriate for the internet), whereas internationalization implies an agreement reached among states. Those of us paying attention before and during Netmundial always insisted on globalization rather than internationalization as the word of choice. From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Phil Corwin Sent: Tuesday, December 27, 2016 10:15 PM To: Pedro Ivo Ferraz da Silva <pedro.ivo@itamaraty.gov.br>; parminder <parminder@itforchange.net>; Kavouss Arasteh <kavouss.arasteh@gmail.com>; Greg Shatan <gregshatanipc@gmail.com> Cc: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] RES: Jurisdiction Proposed Questions and Poll Results "Let me emphasize, by the way, that the NETmundial Statement calls for ICANN´s internationalization and not for it to become an intergovernmental organization. Those are two different notions that should not be confounded." Can you please cite any example of an "internationalized" organization that is not an IGO and, if such example(s) exists, cite the jurisdiction in which it is organized and whose laws it is subject to. Thank you. Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/cell "Luck is the residue of design" -- Branch Rickey ________________________________ From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [accountability-cross-community-bounces@icann.org] on behalf of Pedro Ivo Ferraz da Silva [pedro.ivo@itamaraty.gov.br] Sent: Saturday, December 24, 2016 9:53 AM To: parminder; Kavouss Arasteh; Greg Shatan Cc: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: [CCWG-ACCT] RES: Jurisdiction Proposed Questions and Poll Results Dear CCWG-colleagues, After reading some comments in this email thread, I must admit to be really disappointed. Some of our colleagues in the CCWG seem to have forgotten - perhaps on purpose - that the topic of jurisdiction was allocated to WS2 as a result of a postponement, since the majority of this group thought it was not appropriate to deal with it in the pre-transition period due to time constraints. My government was not in favor of postponing the discussion on jurisdiction, as we consider it was - and remains - a fundamental aspect of a new ICANN truly governed by the multistakeholder community without any pre-conditions, but in respect to the viewpoint of the other colleagues, we agreed to move it to WS2. Now that time has come to properly deal with this topic, it is quite frustrating to notice that some participants insist on limiting and/or procrastinating this debate, including by using the absurd argument that any discussion around jurisdiction cannot put into question any aspect already decided in WS1, which is embedded in the California law. We cannot see good faith in that kind of circular argument. In our view, the discussion around the inclusion or exclusion of Q.4 shows quite clearly that some of those who have fiercely objected to any jurisdiction debate during WS1 are maintaining their objection in WS2 as well. On that particular topic (Q.4) we concur with the view that upon deciding on institutional arrangements we should not only consider already occurred cases but also take into account logically strong possibilities. The responses to the questionnaire should thus help us to deal with all possibilities associate to jurisdiction. In case any unsubstantiated opinion will be received, it should be summarily discarded.

From the various jurisdiction calls it became quite evident that a substantial part of the subgroup - mainly non-US - has great interest in examining and debating ways through which we can make sure that any issue associated to jurisdiction be addressed in a way compatible with the company's international remit of coordinating Internet public identifiers. In that context, I would like to highlight my government´s understanding that although the proposed questionnaire under discussion may provide us with some relevant factual information, it does not in any way cover all aspects of interest. We would like to refer, for example, to the list of issues compiled by Kavouss Arasteh as per his 13 December 2016 e-mail. We would also refer to questions that have continuously been asked by Parminder, apparently without any satisfactory answer. Those issues and questions include, for example, dispute settlement related topics, which demonstrates, in our view, that jurisdiction cannot be seen purely from businesses´ viewpoint. As someone has stated, we also need to look at the relationship between ICANN and third parties and adequately consider non-contracted Parties that might be affected by ICANN´s acts and/or omissions. From the perspective of the Brazilian government, the topics raised by Kavouss, Parminder and others are issues of particular interest which, needless to say, will not be adequately addressed through the mere analysis of the answers provided to the questionnaire, whether it includes Q.4 or not. My government has expressed its interest in pursuing discussion on jurisdiction through those angles many times - both during the IANA transition process and well before that. Other governments have done the same, as well as a sound number of civil society organizations around the globe. The "NETmundial Multistakeholder Statement", while calling for the internationalization of ICANN, clearly expresses this as well. Let me emphasize, by the way, that the NETmundial Statement calls for ICANN´s internationalization and not for it to become an intergovernmental organization. Those are two different notions that should not be confounded.

If this subgroup fails to deal with the multidimensional issues associated to jurisdiction properly , it may be applauded by some segments , but it will not contribute to putting in place a framework that will ensure the shared goal of making ICANN a legitimate entity in the eyes of all stakeholders, including governments. To achieve that, no issues should be discarded as "non important" or "not yet verified". While preserving the essence of what was achieved in WS1, innovative thinking, including on the part of persons with legal expertise, will be needed. Is it worth to wipe an important debate under the carpet just to comfort one or a few stakeholder groups while discontenting others? What kind of legitimacy is such a biased and limited exercise likely to have within the international community? . It is time the subgroup - including the coChairs - make a honest assessment of the various viewpoints related to ICANN's jurisdiction and conduct the debate as openly as possible in order to address all the concerns and interests behind it. Kind regards, Sec. Pedro Ivo Ferraz da Silva Division of Information Society Ministry of Foreign Affairs - Brazil T: +55 61 2030-6609 ________________________________ De: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [accountability-cross-community-bounces@icann.org] em nome de parminder [parminder@itforchange.net] Enviado: quinta-feira, 22 de dezembro de 2016 14:01 Para: Kavouss Arasteh; Greg Shatan Cc: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Assunto: Re: [CCWG-ACCT] Jurisdiction Proposed Questions and Poll Results Dear Kavouss You are right, we should first deal with the issue of the questionnaire. I agree, as do many others, that there is no justification to remove the proposed Q 4 from the questionnaire. The question must go out along with others. A question seeking information is only a question seeking information. People may chose to not respond to it, or give different responses, likely in opposition to one another. That is all very fine, and quite expected. But such forceful arguments to not ask for certain kinds of information is very disturbing, even alarming. (I have issues with how the other questions are framed, but I am fine to let them go out because some people want them to be posed.) Ordinarily, if a good number of participants here wanted a question, that should be enough to include it. Here, a majority of those who voted on the issue of this particular question wanted the question included. That should have conclusively stopped the debate. But no, not so. There is persistent effort to censor this question. And this in a process that is advertised as open, transparent, collaborative, and what not. There is something very basically wrong here. parminder On Thursday 22 December 2016 07:20 PM, Kavouss Arasteh wrote: Dear John. Dear Parminder, It is difficult for me to conclude on any solution between the lines of your discussion. Could any of you kindly give a resume of the exchanged views. We need to look for some compromise solution knowing that some hard liners like x and y insist to impose their objections to send Q4.I continue to object to all questions until all 4 are agreed Nothing is agreed untill everything is agreed this is a Global multistakholder Group discussion and NOT North American Sub-Region multistakholder Group dominated by certain individuals Regards Kavouss 2016-12-22 13:06 GMT+01:00 parminder <parminder@itforchange.net<mailto:parminder@itforchange.net>>: On Tuesday 20 December 2016 08:37 PM, John Laprise wrote: "To turn ones face away and say, nothing can be done here, to evolve our democratic international systems, is to vote for a status quo which serves some, but not others." Rather, it is an acknowledgement of reality. Apologies for appearing to be flippant, but isnt that what every status quo-ist says. Rule of law is neither globally strong nor evenly distributed. I can imagine a world in which the way forward you describe is plausible but, regrettably, it is not the one we live in. Other systems need strengthening and in some cases even existence before the way forward is open. It's not a vote for the status quo but a recognition of path dependency. I am not asking for a violent deviation from the path - both options that I propose, a new international law and immunity under existing US Act carries forward the path-dependency, and completely safeguard the existing structures and processes of ICANN, the system I think you allude to as requiring strengthening. What I propose in fact further strengthens it, to a considerable extent. The ICANN system's current jurisdictional oversight by a single country is its biggest weak point in terms of international legitimacy. ( A point, unfortunately USians here seem not able to see and sympathise with.) Imagine an ICANN with immunity from US jurisdiction; how much legitimacy, and thus strength, it adds to the system. Thanks for the back rounder Parminder. It was, along with some parallel research, quite helpful. Thanks John, you are welcome. The problem remains however that there is no analogous organization to ICANN merely in terms of its contractual authority. Firstly, if we are hoping that a fully-developed, well-rounded solution, with everything fully covered by enough exact precedents, to this complex but very genuine problem, will simply one day drop in our laps, I assure you that this is not going to happen. We have to work for it, join the dots, take risks, make innovations, and so on. The point is, who is losing and gaining what from the present dispensation, and who is willing to do what is required to do. Next, I see that organisations like International Fertilizer and Development Centre, which we cited as an example of an NPO given jurisdictional immunity, also does run many projects worldwide. Any such project would require use of a legal status, entering contracts, and so on.... We just need to look into it. But if we close our eyes, and simply refuse to explore options, we are not going to get anywhere. I am not saying this example will be an exact fit for our requirement, but we need to see what is possible, and innovate and evolve over it. I'd also add that many of the benefits of the act are at the discretion of the US Secretary of State and can be revoked. Yes, which is why immunity under US Act is less sustainable option than international law based immunity. But still better than the present condition. In the recent civil society statement on jurisdiction<http://www.itforchange.net/sites/default/files/Jurisdiction%20of%20ICANN.pdf>, we also suggested a method whereby any such withdrawal of immunity can be made difficult/ ineffectual (see option 3 in the end). The proposed jurisdictional immunity would also require all governments to sign off on such status, given ICANN's reach. I dont see why so. Only US gov needs to agree. I know that there is a significant literature on international compacts and law. Given the often decades long time frames for the passage and acceptance of such law, the Internet as we know it is unlikely to exist by the time it comes into force. These are weak excuses. It can be done in 6 months. But in any case, if it satisfies those who want to move towards international jurisdiction, what do you lose in allowing to set in motion the process, esp if you think it would take forever to do anything. Let those who want have it. In the interim, status quo would stay. To your question about why we do not discuss jurisdictional immunity under US law: it is because the domestic political reality of the situation makes such an eventuality so remote as to be hypothetical. The same domestic situation makes the continuation of ICANN under US jurisdiction even less tenable. This brings me to a very important point: the job of CCWG, working on behalf of the global community, is not to second guess what US gov will accept or not (unfortunately, that is what it has mostly done). If this was its real task, we as well may let US gov do what it may, instead of providing them the cover of legitimacy of the supposed will of the so called 'global community' which is what this process does. Our job is to recommend what we think in is best global interest, and is ordinarily plausible to do. This is what our job is, and we must just do that. Let US gov do its job - accept our recs or not. That burden is upon them - let s not take up their burden. This aspect of the work of the "community" groups involved in the transition process has always greatly bothered me. We must have clarity about - on whose behalf are we working (i think, for the global community, but you can clarify) and what our recs must be based on (I think, on our understanding of what is best for the global community, and not what we think US gov likes and would agree to, and what not, but again you can clarify) The described quest is admirable but IMO is a non-starter. Conditions do not exist presently to make it a possible. We are part of once in decades constitutional process about ICANN's structures. If it is not now, it is never. parminder Best regards, John Laprise, Ph.D. Consulting Scholar http://www.linkedin.com/in/jplaprise/ From: parminder [mailto:parminder@itforchange.net] Sent: Tuesday, December 20, 2016 2:57 AM To: John Laprise <jlaprise@gmail.com><mailto:jlaprise@gmail.com>; accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Jurisdiction Proposed Questions and Poll Results On Monday 19 December 2016 08:14 PM, John Laprise wrote: Possibilities of jurisdictional immunity? Could you please provide examples of organizations that enjoy such. John The most well known case of jurisdictional immunity is of course for organisations incorporated under international law. Unlike what has been argued here variously, although international law has to be made by governments through treaties etc that says nothing about the actual governance structure of the concerned organisation, ICANN in this case. International law can, to take an extreme case, hand over complete governance of a body created/ incorporated under international law to you and me... Nothing circumscribes how international law is written as long as all countries agree to it. It is entirely possible, and I think extremely plausible, that they would agree to write in such law the exact governance structure of ICANN as it is at present. Right now too, ICANN exists by and under the strength of its law of incorporation which is US law. In the scenario I present, it would just be international law instead of US law. Yes, there are matters to worked out in this regard, but if democracy and self-determination of all people, equally, is of any importance at all, we can go through the process, including doing the needed innovations as needed. The current international system was not handed over to us by God, it was evolved by people like us, who responded appropriately to newer and newer global challenges, as the one that faces us now. To turn ones face away and say, nothing can be done here, to evolve our democratic international systems, is to vote for a status quo which serves some, but not others. And these are the others that are protesting here, and seeking appropriate change. It is a political issue, lets not treat it as a technical issue, of what is argued to be difficult or too "troublesome" to pursue. Next, even without going the international law route, as has been said many times earlier here, US law allows even non profits to be given jurisdictional immunity. The concerned law is the United States International Organisations Immunities Act<https://archive.icann.org/en/psc/annex9.pdf> . And an example of a US non-profit being given jurisdiction immunity under it is International Fertilizer and Development Center. This has been discussed in a report commissioned by ICANN itself which can be found at https://archive.icann.org/en/psc/corell-24aug06.html . I have been unable to understand why can we not agree to even jurisdictional immunity under existing US law, which keeps ICANN in the US, preserves its existing structures, and does go considerable way to address the concerns about those who are concerned about application of US public law on ICANN, and what it may mean for its global governance work. The argument is advanced that this may affect the operation of the newly instituted community accountability mechanism. I dont think this is not true. This mechanism is a matter of internal ICANN governance system, which is a 'private' arrangement with choice of law available to it. It simply has to be put in ICANN bylaws that ICANN governance processes will be subject to adjudication by Californian courts as present. That should do. Of course the mentioned International Fertilizer and Development Centre also must be existing with some governance systems, that admit of external adjudication, even as it enjoys the benefit of jurisdictional immunity from US public laws. Such immunity always only pertains to the policy and such international core activities of the concerned organisation, and associated matters. It would not, for instance, extend to actual crime being committed by its personnel on its premises. All such matters of various distinctions get taken care of when we enter the actual processes of such immunities etc. Right now, the issue is only to decide to go down the route, or not. parminder Best regards, John Laprise, Ph.D. Consulting Scholar http://www.linkedin.com/in/jplaprise/ From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of parminder Sent: Monday, December 19, 2016 7:10 AM To: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Jurisdiction Proposed Questions and Poll Results On Saturday 17 December 2016 12:40 AM, Mueller, Milton L wrote: SNIP John Laprise's wording was much, much better: "What are the advantages or disadvantages, if any, relating to changing ICANN's jurisdiction*, particularly with regard to the actual operation of ICANN's policies and accountability mechanisms?" This formulation does not include possibilities of jurisdictional immunity. Something like "What are the advantages or disadvantages, if any, relating to changing ICANN's jurisdiction*, or providing possible jurisdictional immunity, particularly with regard to the actual operation of ICANN's policies and accountability mechanisms?" would be better. parminder _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community ________________________________ No virus found in this message. 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On Wednesday 28 December 2016 08:44 AM, Phil Corwin wrote:

"Let me emphasize, by the way, that the NETmundial Statement calls for ICANN´s internationalization and not for it to become an intergovernmental organization. Those are two different notions that should not be confounded."

Can you please cite any example of an "internationalized" organization that is not an IGO and, if such example(s) exists, cite the jurisdiction in which it is organized and whose laws it is subject to. Thank you.

Being international organisation is about law of incorporation and/or applicable jurisdiction, inter-governmental organisation is about its governance form, as being consisting of governments. Most international organisations are intergov but that is not at all necessary. Red Cross is an international organisational, which though not created under Swiss law and not international law is supported and mandated by international law. It has been given special immunities and privileges by the Swiss gov. International Fertilizer Development Centre calls itself international organisation, and US law calls it as international organisation, and even though continuing to be incorporated as an US non profit, has immunities under US law. Like these, there are many others. In any case, there is no bar on countries getting together to make international law creating or re-mandating an organisation whose governance structure is whatever that international law says it to be. Such a treaty can mandate an international ICANN, with exactly the same governance structure as it currently has, including new accountability mechanisms. In this case while ICANN would indeed be international (law of incorporation, and applicable jurisdiction) it wont be inter-governmental (relating to governance structure). Alternatively, US government can make ICANN an international organisation giving its jurisdictional immunities, exactly as it has done to International Fertilizer Development Centre <http://www.presidency.ucsb.edu/ws/?pid=7176>. This is the list of organisations designated as international organisations <https://iocareers.state.gov/Main/Content/Page/approved-international-organiz...> by the US government. If you look beyond category 2 in this list, many of these are not inter-gov in their management/ governance structure and so not inter-governmental. Hope this satisfies you that possibilities of internationalising ICANN do exist. parminder

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------------------------------------------------------------------------ *From:* accountability-cross-community-bounces@icann.org [accountability-cross-community-bounces@icann.org] on behalf of Pedro Ivo Ferraz da Silva [pedro.ivo@itamaraty.gov.br] *Sent:* Saturday, December 24, 2016 9:53 AM *To:* parminder; Kavouss Arasteh; Greg Shatan *Cc:* accountability-cross-community@icann.org *Subject:* [CCWG-ACCT] RES: Jurisdiction Proposed Questions and Poll Results

Dear CCWG-colleagues,

After reading some comments in this email thread, I must admit to be really disappointed.

Some of our colleagues in the CCWG seem to have forgotten - perhaps on purpose - that the topic of jurisdiction was allocated to WS2 as a result of a postponement, since the majority of this group thought it was not appropriate to deal with it in the pre-transition period due to time constraints. My government was not in favor of postponing the discussion on jurisdiction, as we consider it was – and remains – a fundamental aspect of a new ICANN truly governed by the multistakeholder community without any pre-conditions, but in respect to the viewpoint of the other colleagues, we agreed to move it to WS2.

Now that time has come to properly deal with this topic, it is quite frustrating to notice that some participants insist on limiting and/or procrastinating this debate, including by using the absurd argument that any discussion around jurisdiction cannot put into question any aspect already decided in WS1, which is embedded in the California law. We cannot see good faith in that kind of circular argument.

In our view, the discussion around the inclusion or exclusion of Q.4 shows quite clearly that some of those who have fiercely objected to any jurisdiction debate during WS1 are maintaining their objection in WS2 as well. On that particular topic (Q.4) we concur with the view that upon deciding on institutional arrangements we should not only consider already occurred cases but also take into account logically strong possibilities. The responses to the questionnaire should thus help us to deal with all possibilities associate to jurisdiction. In case any unsubstantiated opinion will be received, it should be summarily discarded.

From the various jurisdiction calls it became quite evident that a substantial part of the subgroup - mainly non-US - has great interest in examining and debating ways through which we can make sure that any issue associated to jurisdiction be addressed in a way compatible with the company's international remit of coordinating Internet public identifiers. In that context, I would like to highlight my government´s understanding that although the proposed questionnaire under discussion may provide us with some relevant factual information, it does not in any way cover all aspects of interest. We would like to refer, for example, to the list of issues compiled by Kavouss Arasteh as per his 13 December 2016 e-mail. We would also refer to questions that have continuously been asked by Parminder, apparently without any satisfactory answer. Those issues and questions include, for example, dispute settlement related topics, which demonstrates, in our view, that jurisdiction cannot be seen purely from businesses´ viewpoint. As someone has stated, we also need to look at the relationship between ICANN and third parties and adequately consider non-contracted Parties that might be affected by ICANN´s acts and/or omissions.

From the perspective of the Brazilian government, the topics raised by Kavouss, Parminder and others are issues of particular interest which, needless to say, will not be adequately addressed through the mere analysis of the answers provided to the questionnaire, whether it includes Q.4 or not.

My government has expressed its interest in pursuing discussion on jurisdiction through those angles many times – both during the IANA transition process and well before that. Other governments have done the same, as well as a sound number of civil society organizations around the globe. The "NETmundial Multistakeholder Statement", while calling for the internationalization of ICANN, clearly expresses this as well. Let me emphasize, by the way, that the NETmundial Statement calls for ICANN´s internationalization and not for it to become an intergovernmental organization. Those are two different notions that should not be confounded.

If this subgroup fails to deal with the multidimensional issues associated to jurisdiction properly , it may be applauded by some segments , but it will not contribute to putting in place a framework that will ensure the shared goal of making ICANN a legitimate entity in the eyes of all stakeholders, including governments. To achieve that, no issues should be discarded as "non important" or "not yet verified". While preserving the essence of what was achieved in WS1, innovative thinking, including on the part of persons with legal expertise, will be needed. Is it worth to wipe an important debate under the carpet just to comfort one or a few stakeholder groups while discontenting others? What kind of legitimacy is such a biased and limited exercise likely to have within the international community? .

It is time the subgroup - including the coChairs - make a honest assessment of the various viewpoints related to ICANN's jurisdiction and conduct the debate as openly as possible in order to address all the concerns and interests behind it.

Kind regards,

Sec. Pedro Ivo Ferraz da Silva Division of Information Society Ministry of Foreign Affairs - Brazil T: +55 61 2030-6609

------------------------------------------------------------------------ *De:* accountability-cross-community-bounces@icann.org [accountability-cross-community-bounces@icann.org] em nome de parminder [parminder@itforchange.net] *Enviado:* quinta-feira, 22 de dezembro de 2016 14:01 *Para:* Kavouss Arasteh; Greg Shatan *Cc:* accountability-cross-community@icann.org *Assunto:* Re: [CCWG-ACCT] Jurisdiction Proposed Questions and Poll Results

Dear Kavouss

You are right, we should first deal with the issue of the questionnaire.

I agree, as do many others, that there is no justification to remove the proposed Q 4 from the questionnaire. The question must go out along with others.

A question seeking information is only a question seeking information. People may chose to not respond to it, or give different responses, likely in opposition to one another. That is all very fine, and quite expected. But such forceful arguments to not ask for certain kinds of information is very disturbing, even alarming. (I have issues with how the other questions are framed, but I am fine to let them go out because some people want them to be posed.)

Ordinarily, if a good number of participants here wanted a question, that should be enough to include it. Here, a majority of those who voted on the issue of this particular question wanted the question included. That should have conclusively stopped the debate. But no, not so. There is persistent effort to censor this question. And this in a process that is advertised as open, transparent, collaborative, and what not. There is something very basically wrong here.

parminder

On Thursday 22 December 2016 07:20 PM, Kavouss Arasteh wrote:

...

Dear John. Dear Parminder, It is difficult for me to conclude on any solution between the lines of your discussion. Could any of you kindly give a resume of the exchanged views. We need to look for some compromise solution knowing that some hard liners like x and y insist to impose their objections to send Q4.I continue to object to all questions until all 4 are agreed Nothing is agreed untill everything is agreed this is a Global multistakholder Group discussion and NOT North American Sub-Region multistakholder Group dominated by certain individuals Regards Kavouss

2016-12-22 13:06 GMT+01:00 parminder <parminder@itforchange.net <mailto:parminder@itforchange.net>>:

On Tuesday 20 December 2016 08:37 PM, John Laprise wrote:

...

“To turn ones face away and say, nothing can be done here, to evolve our democratic international systems, is to vote for a status quo which serves some, but not others.”

Rather, it is an acknowledgement of reality.

Apologies for appearing to be flippant, but isnt that what every status quo-ist says.

...

Rule of law is neither globally strong nor evenly distributed. I can imagine a world in which the way forward you describe is plausible but, regrettably, it is not the one we live in. Other systems need strengthening and in some cases even existence before the way forward is open. It’s not a vote for the status quo but a recognition of path dependency.

I am not asking for a violent deviation from the path - both options that I propose, a new international law and immunity under existing US Act carries forward the path-dependency, and completely safeguard the existing structures and processes of ICANN, the system I think you allude to as requiring strengthening. What I propose in fact further strengthens it, to a considerable extent. The ICANN system's current jurisdictional oversight by a single country is its biggest weak point in terms of international legitimacy. ( A point, unfortunately USians here seem not able to see and sympathise with.) Imagine an ICANN with immunity from US jurisdiction; how much legitimacy, and thus strength, it adds to the system.

...

Thanks for the back rounder Parminder. It was, along with some parallel research, quite helpful.

Thanks John, you are welcome.

...

The problem remains however that there is no analogous organization to ICANN merely in terms of its contractual authority.

Firstly, if we are hoping that a fully-developed, well-rounded solution, with everything fully covered by enough exact precedents, to this complex but very genuine problem, will simply one day drop in our laps, I assure you that this is not going to happen. We have to work for it, join the dots, take risks, make innovations, and so on. The point is, who is losing and gaining what from the present dispensation, and who is willing to do what is required to do.

Next, I see that organisations like International Fertilizer and Development Centre, which we cited as an example of an NPO given jurisdictional immunity, also does run many projects worldwide. Any such project would require use of a legal status, entering contracts, and so on.... We just need to look into it. But if we close our eyes, and simply refuse to explore options, we are not going to get anywhere. I am not saying this example will be an exact fit for our requirement, but we need to see what is possible, and innovate and evolve over it.

...

I’d also add that many of the benefits of the act are at the discretion of the US Secretary of State and can be revoked.

Yes, which is why immunity under US Act is less sustainable option than international law based immunity. But still better than the present condition. In therecent civil society statement on jurisdiction <http://www.itforchange.net/sites/default/files/Jurisdiction%20of%20ICANN.pdf>, we also suggested a method whereby any such withdrawal of immunity can be made difficult/ ineffectual (see option 3 in the end).

...

The proposed jurisdictional immunity would also require all governments to sign off on such status, given ICANN’s reach.

I dont see why so. Only US gov needs to agree.

...

I know that there is a significant literature on international compacts and law. Given the often decades long time frames for the passage and acceptance of such law, the Internet as we know it is unlikely to exist by the time it comes into force.

These are weak excuses. It can be done in 6 months. But in any case, if it satisfies those who want to move towards international jurisdiction, what do you lose in allowing to set in motion the process, esp if you think it would take forever to do anything. Let those who want have it. In the interim, status quo would stay.

...

To your question about why we do not discuss jurisdictional immunity under US law: it is because the domestic political reality of the situation makes such an eventuality so remote as to be hypothetical.

The same domestic situation makes the continuation of ICANN under US jurisdiction even less tenable.

This brings me to a very important point: the job of CCWG, working on behalf of the global community, is not to second guess what US gov will accept or not (unfortunately, that is what it has mostly done). If this was its real task, we as well may let US gov do what it may, instead of providing them the cover of legitimacy of the supposed will of the so called 'global community' which is what this process does. Our job is to recommend what we think in is best global interest, and is ordinarily plausible to do. This is what our job is, and we must just do that. Let US gov do its job - accept our recs or not. That burden is upon them - let s not take up their burden. This aspect of the work of the "community" groups involved in the transition process has always greatly bothered me. We must have clarity about - on whose behalf are we working (i think, for the global community, but you can clarify) and what our recs must be based on (I think, on our understanding of what is best for the global community, and not what we think US gov likes and would agree to, and what not, but again you can clarify)

...

The described quest is admirable but IMO is a non-starter. Conditions do not exist presently to make it a possible.

We are part of once in decades constitutional process about ICANN's structures. If it is not now, it is never.

parminder

...

Best regards,

John Laprise, Ph.D.

Consulting Scholar

<http://www.linkedin.com/in/jplaprise/>http://www.linkedin.com/in/jplaprise/

*From:*parminder [mailto:parminder@itforchange.net] *Sent:* Tuesday, December 20, 2016 2:57 AM *To:* John Laprise <mailto:jlaprise@gmail.com><jlaprise@gmail.com>; accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> *Subject:* Re: [CCWG-ACCT] Jurisdiction Proposed Questions and Poll Results

On Monday 19 December 2016 08:14 PM, John Laprise wrote:

Possibilities of jurisdictional immunity? Could you please provide examples of organizations that enjoy such.

John The most well known case of jurisdictional immunity is of course for organisations incorporated under international law. Unlike what has been argued here variously, although international law has to be made by governments through treaties etc that says nothing about the actual governance structure of the concerned organisation, ICANN in this case. International law can, to take an extreme case, hand over complete governance of a body created/ incorporated under international law to you and me... Nothing circumscribes how international law is written as long as all countries agree to it. It is entirely possible, and I think extremely plausible, that they would agree to write in such law the exact governance structure of ICANN as it is at present. Right now too, ICANN exists by and under the strength of its law of incorporation which is US law. In the scenario I present, it would just be international law instead of US law. Yes, there are matters to worked out in this regard, but if democracy and self-determination of all people, equally, is of any importance at all, we can go through the process, including doing the needed innovations as needed. The current international system was not handed over to us by God, it was evolved by people like us, who responded appropriately to newer and newer global challenges, as the one that faces us now. To turn ones face away and say, nothing can be done here, to evolve our democratic international systems, is to vote for a status quo which serves some, but not others. And these are the others that are protesting here, and seeking appropriate change. It is a political issue, lets not treat it as a technical issue, of what is argued to be difficult or too "troublesome" to pursue.

Next, even without going the international law route, as has been said many times earlier here, US law allows even non profits to be given jurisdictional immunity. The concerned law is the _United States International Organisations Immunities Act <https://archive.icann.org/en/psc/annex9.pdf>_ . And an example of a US non-profit being given jurisdiction immunity under it is/International Fertilizer and Development Center. /This has been discussed in a report commissioned by ICANN itself which can be found at https://archive.icann.org/en/psc/corell-24aug06.html <https://archive.icann.org/en/psc/corell-24aug06.html> .

I have been unable to understand why can we not agree to even jurisdictional immunity under existing US law, which keeps ICANN in the US, preserves its existing structures, and does go considerable way to address the concerns about those who are concerned about application of US public law on ICANN, and what it may mean for its global governance work.

The argument is advanced that this may affect the operation of the newly instituted community accountability mechanism. I dont think this is not true. This mechanism is a matter of internal ICANN governance system, which is a 'private' arrangement with choice of law available to it. It simply has to be put in ICANN bylaws that ICANN governance processes will be subject to adjudication by Californian courts as present. That should do. Of course the mentioned International Fertilizer and Development Centre also must be existing with some governance systems, that admit of external adjudication, even as it enjoys the benefit of jurisdictional immunity from US public laws. Such immunity always only pertains to the policy and such international core activities of the concerned organisation, and associated matters. It would not, for instance, extend to actual crime being committed by its personnel on its premises. All such matters of various distinctions get taken care of when we enter the actual processes of such immunities etc. Right now, the issue is only to decide to go down the route, or not.

parminder

Best regards,

John Laprise, Ph.D.

Consulting Scholar

http://www.linkedin.com/in/jplaprise/ <http://www.linkedin.com/in/jplaprise/>

*From:*accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org>] *On Behalf Of *parminder *Sent:* Monday, December 19, 2016 7:10 AM *To:* accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> *Subject:* Re: [CCWG-ACCT] Jurisdiction Proposed Questions and Poll Results

On Saturday 17 December 2016 12:40 AM, Mueller, Milton L wrote:

SNIP

John Laprise's wording was much, much better:

"What are the advantages or disadvantages, if any, relating to changing ICANN’s jurisdiction*, particularly with regard to the actual operation of ICANN’s policies and accountability mechanisms?"

This formulation does not include possibilities of jurisdictional immunity.

Something like

"What are the advantages or disadvantages, if any, relating to changing ICANN’s jurisdiction*, */or providing possible jurisdictional immunity,/* particularly with regard to the actual operation of ICANN’s policies and accountability mechanisms?"

would be better.

parminder

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-----Original Message----- I have read a number of the mails on this issue, but had not been following the prior discussion. Is there anything that I can read that does an analysis of specific issues related to the jurisdiction and how these might be addressed in different jurisdictions?

No, there isn't. We are still debating whether and how to send out questions asking people about this. Join the fun on the jurisdiction subgroup list!

Dear Seun, You put many words together but that has nothing to do with Jurisdiction . Just an incoherent approach . Please clearly describe your idea which camp do you defend pls ? No change ? Or address the sensitive jurisdiction . Can you tell me what the business of the US Court to decide on . afarica.: You are African and must normally defend that people. Why a UIS COURS is expected to decide on the interest of African People in deciding whether it is the intestats of African to delegate the string to Applicant 1 or applicant 2 . Why not an African or international court should decide on the case. Regards Kavouss 2016-12-29 23:22 GMT+01:00 Seun Ojedeji <seun.ojedeji@gmail.com>:

While I also share same question with Martin, I don't think it may be too early to give a definite response as you seem to have provided Milton as I guess that is what the question 4 seem to be all about. Unless we are already trying to process the questions before administering them.

Hence I also look forward to what comes up as responses to that question even though I have feeling that it's gonna cost volunteer time and legal fees :)

Cheers!

Sent from my LG G4 Kindly excuse brevity and typos

On 29 Dec 2016 23:03, "Mueller, Milton L" <milton@gatech.edu> wrote:

...

...

-----Original Message----- I have read a number of the mails on this issue, but had not been following the prior discussion. Is there anything that I can read that does an analysis of specific issues related to the jurisdiction and how these might be addressed in different jurisdictions?

No, there isn't. We are still debating whether and how to send out questions asking people about this. Join the fun on the jurisdiction subgroup list! _______________________________________________ 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

On Friday 30 December 2016 02:51 AM, Martin Boyle wrote:

Hi Parminder,

I find your reference to "special immunities" worrying. Given that the accountability model relies on legal action for enforcement, we do need to be sure that jurisdiction does not inhibit this action.

Martin, it is possible to maintain legally enforceable accountability mechanisms even with jurisdictional immunities, like those provided under US International Organisations Immunities Act. International Fertilizer Development Centre, the standard example I have used, continues to be a US non profit even as if has immunities under this Act. But all this we can know only know fully well when we begin explore such possibilities. But look at the kind of time spent and forces devoted to prevent even begin looking into these issues, and seeking to just carry on the status quo, which as you can see is not acceptable to many. These are socio-political issues, and everything is a trade off among many things. We need to first explore the options that people are proposing here before we reach conclusions. But can you believe it that we are now stuck for some weeks about why we should not even ask a particular question from the general public to assemble information about such problems and possibilities. parminder

Over the years there has been a number of cases where immunity has become a barrier to enforcing accountability. I'm sure those who drafted the rules did not intend them to protect the organisation from accountability, but I seem to remember issues in athletics, football (soccer), the Olympics, satellite organisations and the Red Cross (although I don't have any analysis of what went wrong in the different cases).

I have read a number of the mails on this issue, but had not been following the prior discussion. Is there anything that I can read that does an analysis of specific issues related to the jurisdiction and how these might be addressed in different jurisdictions?

Martin

Martin Boyle Consultant

Sent from my iPhone

On 29 Dec 2016, at 05:38, parminder <parminder@itforchange.net> wrote:

special immunities

I believe that requesting views regarding “providing possible jurisdictional immunity” are both misleading and outside the scope of this WG. ICANN based upon the MSM is of necessity an entity that is private in nature in which civil society, academia, business, and other private parties formulate policy and governments have a secondary role to provide advice. The only entities I know other than nation-states that enjoy any degree of jurisdictional immunity are International Intergovernmental Organizations (IGOs) established by treaty, and in those organizations governments have the controlling role. Hence, pursuit of any type of jurisdictional immunity is equivalent to an effort to change the fundamental nature of ICANN, as well as being in violation of the key condition of the IANA transition, which is that ICANN would not become an IGO. In addition, providing ICANN with jurisdictional immunity would insulate it from legal process and hence undermine accountability. Finally, as I know based upon my current tenure as Co-Chair of the WG looking at access to curative rights processes by IGOs, when we sought expert legal advice on the recognized scope of immunity for IGOs we learned that such immunity is not absolute and that the scope is based upon the specific fact situation involved as well as the national court in which the immunity is claimed. Hence, going down this road would require a tremendous amount of additional legal research dealing with a variety of hypothetical scenarios in separate national jurisdictions. Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/Cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of parminder Sent: Monday, December 19, 2016 8:10 AM To: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Jurisdiction Proposed Questions and Poll Results On Saturday 17 December 2016 12:40 AM, Mueller, Milton L wrote: SNIP John Laprise's wording was much, much better: "What are the advantages or disadvantages, if any, relating to changing ICANN’s jurisdiction*, particularly with regard to the actual operation of ICANN’s policies and accountability mechanisms?" This formulation does not include possibilities of jurisdictional immunity. Something like "What are the advantages or disadvantages, if any, relating to changing ICANN’s jurisdiction*, or providing possible jurisdictional immunity, particularly with regard to the actual operation of ICANN’s policies and accountability mechanisms?" would be better. parminder _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community ________________________________ No virus found in this message. Checked by AVG - www.avg.com<http://www.avg.com> Version: 2016.0.7924 / Virus Database: 4664/13557 - Release Date: 12/08/16 Internal Virus Database is out of date.

I was not disputing the existence of jurisdictional issues. I was pointing out the implausibility of the idea that the governments of the world would grant jurisdictional immunity to ICANN in the absence of precedent. Best regards, John Laprise, Ph.D. Consulting Scholar <http://www.linkedin.com/in/jplaprise/> http://www.linkedin.com/in/jplaprise/ From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of farzaneh badii Sent: Monday, December 19, 2016 1:57 PM To: Phil Corwin <psc@vlaw-dc.com> Cc: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Jurisdiction Proposed Questions and Poll Results I am afraid the jurisdictional problems that are faced by certain users located in certain countries are not hypothetical. They are real problems. As we know about the case of .IR was a very serious case, and it is still dragging .... how much uncertainty.IR registrants who are mainly from the private sector should go through? Why? And it happened because of ICANN jurisdiction nothing else. I am not for discussions about changing ICANN's incorporation. But immunity I believe should be discussed. If you don't see the problem, it does not mean it does not exist. The reason it seems like it is not the problem is that those who face them don't know where to go to raise it! On 19 December 2016 at 14:49, Phil Corwin <psc@vlaw-dc.com <mailto:psc@vlaw-dc.com> > wrote: I believe that requesting views regarding “providing possible jurisdictional immunity” are both misleading and outside the scope of this WG. ICANN based upon the MSM is of necessity an entity that is private in nature in which civil society, academia, business, and other private parties formulate policy and governments have a secondary role to provide advice. The only entities I know other than nation-states that enjoy any degree of jurisdictional immunity are International Intergovernmental Organizations (IGOs) established by treaty, and in those organizations governments have the controlling role. Hence, pursuit of any type of jurisdictional immunity is equivalent to an effort to change the fundamental nature of ICANN, as well as being in violation of the key condition of the IANA transition, which is that ICANN would not become an IGO. In addition, providing ICANN with jurisdictional immunity would insulate it from legal process and hence undermine accountability. Finally, as I know based upon my current tenure as Co-Chair of the WG looking at access to curative rights processes by IGOs, when we sought expert legal advice on the recognized scope of immunity for IGOs we learned that such immunity is not absolute and that the scope is based upon the specific fact situation involved as well as the national court in which the immunity is claimed. Hence, going down this road would require a tremendous amount of additional legal research dealing with a variety of hypothetical scenarios in separate national jurisdictions. Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/Cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey From: accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> ] On Behalf Of parminder Sent: Monday, December 19, 2016 8:10 AM To: accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Jurisdiction Proposed Questions and Poll Results On Saturday 17 December 2016 12:40 AM, Mueller, Milton L wrote: SNIP John Laprise's wording was much, much better: "What are the advantages or disadvantages, if any, relating to changing ICANN’s jurisdiction*, particularly with regard to the actual operation of ICANN’s policies and accountability mechanisms?" This formulation does not include possibilities of jurisdictional immunity. Something like "What are the advantages or disadvantages, if any, relating to changing ICANN’s jurisdiction*, or providing possible jurisdictional immunity, particularly with regard to the actual operation of ICANN’s policies and accountability mechanisms?" would be better. parminder _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community _____ No virus found in this message. Checked by AVG - www.avg.com <http://www.avg.com> Version: 2016.0.7924 / Virus Database: 4664/13557 - Release Date: 12/08/16 Internal Virus Database is out of date. _______________________________________________ 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 -- Farzaneh

Phil is entirely correct. We have dedicated 20 years since the IFWP of 1998-9 to creating a multistakeholder model. We cannot seek to change that in pursuit of a perceived immunity that would make ICANN unaccountable. On 19/12/16 19:49, Phil Corwin wrote:

I believe that requesting views regarding “/providing possible jurisdictional immunity”/ are both misleading and outside the scope of this WG.

ICANN based upon the MSM is of necessity an entity that is private in nature in which civil society, academia, business, and other private parties formulate policy and governments have a secondary role to provide advice. The only entities I know other than nation-states that enjoy any degree of jurisdictional immunity are International Intergovernmental Organizations (IGOs) established by treaty, and in those organizations governments have the controlling role. Hence, pursuit of any type of jurisdictional immunity is equivalent to an effort to change the fundamental nature of ICANN, as well as being in violation of the key condition of the IANA transition, which is that ICANN would not become an IGO. In addition, providing ICANN with jurisdictional immunity would insulate it from legal process and hence undermine accountability.

Finally, as I know based upon my current tenure as Co-Chair of the WG looking at access to curative rights processes by IGOs, when we sought expert legal advice on the recognized scope of immunity for IGOs we learned that such immunity is not absolute and that the scope is based upon the specific fact situation involved as well as the national court in which the immunity is claimed. Hence, going down this road would require a tremendous amount of additional legal research dealing with a variety of hypothetical scenarios in separate national jurisdictions.

*Philip S. Corwin, Founding Principal*

*Virtualaw LLC*

*1155 F Street, NW*

*Suite 1050*

*Washington, DC 20004*

*202-559-8597/Direct*

*202-559-8750/Fax*

*202-255-6172/Cell***

* *

*Twitter: @VlawDC*

*/"Luck is the residue of design" -- Branch Rickey/*

*From:*accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] *On Behalf Of *parminder *Sent:* Monday, December 19, 2016 8:10 AM *To:* accountability-cross-community@icann.org *Subject:* Re: [CCWG-ACCT] Jurisdiction Proposed Questions and Poll Results

On Saturday 17 December 2016 12:40 AM, Mueller, Milton L wrote:

SNIP

John Laprise's wording was much, much better:

"What are the advantages or disadvantages, if any, relating to changing ICANN’s jurisdiction*, particularly with regard to the actual operation of ICANN’s policies and accountability mechanisms?"

This formulation does not include possibilities of jurisdictional immunity.

Something like

"What are the advantages or disadvantages, if any, relating to changing ICANN’s jurisdiction*, */or providing possible jurisdictional immunity,/* particularly with regard to the actual operation of ICANN’s policies and accountability mechanisms?"

would be better.

parminder

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Problem analysis of Phil Corwin is correct not the conclusion that we cannot do much in the long run. Every expert knows that it is a long shot without much practice to create an accountability model on the international level. It should be considered – on an academic level at the moment - for the unlikely case that U.S. jurisdiction is not be most appropriate one. Best, Erich Schweighofer Von: Nigel Roberts<mailto:nigel@channelisles.net> Gesendet: Montag, 19. Dezember 2016 21:00 An: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Betreff: Re: [CCWG-ACCT] Jurisdiction Proposed Questions and Poll Results Phil is entirely correct. We have dedicated 20 years since the IFWP of 1998-9 to creating a multistakeholder model. We cannot seek to change that in pursuit of a perceived immunity that would make ICANN unaccountable. On 19/12/16 19:49, Phil Corwin wrote:

I believe that requesting views regarding “/providing possible jurisdictional immunity”/ are both misleading and outside the scope of this WG.

ICANN based upon the MSM is of necessity an entity that is private in nature in which civil society, academia, business, and other private parties formulate policy and governments have a secondary role to provide advice. The only entities I know other than nation-states that enjoy any degree of jurisdictional immunity are International Intergovernmental Organizations (IGOs) established by treaty, and in those organizations governments have the controlling role. Hence, pursuit of any type of jurisdictional immunity is equivalent to an effort to change the fundamental nature of ICANN, as well as being in violation of the key condition of the IANA transition, which is that ICANN would not become an IGO. In addition, providing ICANN with jurisdictional immunity would insulate it from legal process and hence undermine accountability.

Finally, as I know based upon my current tenure as Co-Chair of the WG looking at access to curative rights processes by IGOs, when we sought expert legal advice on the recognized scope of immunity for IGOs we learned that such immunity is not absolute and that the scope is based upon the specific fact situation involved as well as the national court in which the immunity is claimed. Hence, going down this road would require a tremendous amount of additional legal research dealing with a variety of hypothetical scenarios in separate national jurisdictions.

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*From:*accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] *On Behalf Of *parminder *Sent:* Monday, December 19, 2016 8:10 AM *To:* accountability-cross-community@icann.org *Subject:* Re: [CCWG-ACCT] Jurisdiction Proposed Questions and Poll Results

On Saturday 17 December 2016 12:40 AM, Mueller, Milton L wrote:

SNIP

John Laprise's wording was much, much better:

"What are the advantages or disadvantages, if any, relating to changing ICANN’s jurisdiction*, particularly with regard to the actual operation of ICANN’s policies and accountability mechanisms?"

This formulation does not include possibilities of jurisdictional immunity.

Something like

"What are the advantages or disadvantages, if any, relating to changing ICANN’s jurisdiction*, */or providing possible jurisdictional immunity,/* particularly with regard to the actual operation of ICANN’s policies and accountability mechanisms?"

would be better.

parminder

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On 16-Dec-16 14:10, Mueller, Milton L wrote:

...

Good to know that you do not oppose it. I strenuously oppose it if it is sent out with the other questions. I accept it if it is sent out on its own. Crucial distinction.

I do not understand why questions sent separately is a "Crucial distinction. ". I still support not sending any questions unless we can send the full set of questions. I oppose bifurcation of questions. avri --- This email has been checked for viruses by Avast antivirus software. https://www.avast.com/antivirus