Greg I find it quite strange that this subgroup appears to be discussing what the ccNSO should be doing (or not). It's a fundamental of the relationship between ccTLDs (and ICANN) that ICANN cannot interfere in ccTLD policy or impose policy on ccTLDs. Subsidiarity applies - that is to say ccTLD policy is developed at local level by we, the ccTLDs ourselves. Only in a very small set of, well defined circumstances may ICANN policy apply to ccTLDs, and then only to those ccTLDs that are members of the ccNSO, and only whilst they remain a member. This is the susbtance of the 2003 Montreal Agreement. It's only a happy co-incidence that Jordan and I are members of this WG and can engange. I would caution this group to take no actions that might be construed as presuming upon the delicate balance between ICANN and ccTLDs. Imposing sweeping and untested solutions to hypothetical problems on ccTLDs from outside will not, I suspect, be that well received, and in particular the suggestion that our forthcoming ccNSO PDP be coupled with immunity for ICANN. Nigel Roberts On 03/09/17 22:13, Greg Shatan wrote:

Thiago,

As an inital matter, please keep in mind that, as I just sent to Jorge: "This is intended to be a census/list of the proposed issues, primarily to confirm that we did not miss any ​proposed issues."

The notes came from staff and from me. With regard to this major topic, can you first confirm whether you have withdrawn the proposed issue listed as "“In Rem” jurisdiction of US courts over ccTLDs"? I believe that was the case, but hope you can confirm that so that I do not have to review the email list.

I've clarified in the Google Doc that the note "Subset of potential issue of US Courts generally" applies only to the first bullet point (it would apply to the first two bullet points if the "in rem" proposed issue is not being withdrawn.) With regard to the note that "There appear to be no examples of this," I looked at your linked email but did not see any examples. I did see your assertion below and in that linked email that "US organs can possibly interfere with ICANN's ccTLD management, regardless of whether that has already happened." I have added this to the note. If you have examples where this has already happened this would be helpful to the overall discussion. I've also added to the note to reflect your view that a ccNSO PDP should be accompanied by immunity.

With regard to your last point, the third bulletpoint proposed issue already referenced enforcement by domestic agencies. I've added more of your language there to further clarify the point.

I think this takes your comments into account in editing the document.

Best regards,

Greg

On Wed, Aug 30, 2017 at 12:27 PM, Thiago Braz Jardim Oliveira <thiago.jardim@itamaraty.gov.br <mailto:thiago.jardim@itamaraty.gov.br>> wrote:

Dear Greg, Dear All,

Without prejudice to further comments we may have regarding how the proposed issues have been assembled and are individually portrayed, let me react to the "notes" (you?) entered in respect to the "ccTLD issue".

It says "Subset of potential issue of US Courts generally. There appear to be no examples of this. The ccNSO will have a PDP on developing a dispute resolution system, which could address this as these are excluded from IRP as requested by the ccNSO (similar to ASO)".

To my understanding, the note is one-sided and expresses the views of only a handful of participants, as I explain below. To portray it without the reactions and comments that abounded in the list in response to these views might inappropriately influence the subsequent work of the subgroup on this issue.

For example, one such reaction has been the acknowledgment, even on the part of the staunchest opponents to any change to the status quo, that US organs can possibly interfere with ICANN's ccTLD management, regardless of whether that has already happened. (I invite you to look at what I believe is a fair summary of the issue here: http://mm.icann.org/pipermail/ws2-jurisdiction/2017-August/001496.html <http://mm.icann.org/pipermail/ws2-jurisdiction/2017-August/001496.html>). This is without mentioning other reactions and comments challenging (or at least nuancing) such assertion as that "there appears to be no examples of this", as is portrayed in the note.

The same must be said in relation to the note's suggestion that a "PDP on developing a dispute resolution system ... could address this". In fact, Jordan's email, who was the person who mentioned the PDP work by the ccNSO, never really said that the ccNSO PDP "could address" the very issue that US organs can possibly interfere with ICANN's ccTLD management. On the contrary, several participants in the subgroup concurred that a ccNSO PDP would in fact "complement" our work in addressing the issue of US jurisdiction over ccTLDs, and this has not been challenged by anyone. (I invite you to look here: http://mm.icann.org/pipermail/ws2-jurisdiction/2017-August/001441.html <http://mm.icann.org/pipermail/ws2-jurisdiction/2017-August/001441.html> ; see also the language I suggested accommodating the all views here: http://mm.icann.org/pipermail/ws2-jurisdiction/2017-August/001496.html <http://mm.icann.org/pipermail/ws2-jurisdiction/2017-August/001496.html>, all of which I believe should not go ignored in any explanatory note to the issue that purports to be neutral)

Finally, on the broader "ccTLD issue", contrary to the original proposal and subsequent exchanges in the mailing list, the issue is being portrayed in the table as if the only problem identified against ICANN's ccTLD management lay in action in "US courts", as an expression of US "prescriptive" and "adjudicatory" jurisdiction. Here again the "note" is inaccurate, as it states that the issue is a "subset of potential issue of US Courts generally". If the issue is a subset of anything, it is a subset of US jurisdiction generally, which includes US enforcement jurisdiction, which is territorial and exclusive in character, and may be exercised outside domestic courts, for example through US enforcement and regulatory agencies. (In addition to the links above, I also invite you to look here http://mm.icann.org/pipermail/ws2-jurisdiction/2017-August/001469.html <http://mm.icann.org/pipermail/ws2-jurisdiction/2017-August/001469.html>)

In respect to all other issues more generally, a similar reference to "US enforcement jurisdiction" as part of the issues identified is lacking, despite the exchanges in the mailing list proposing and discussing it.

Thank you for taking the above into account.

Best regards,

Thiago

-----Mensagem original----- De: ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org>] Em nome de Greg Shatan Enviada em: quarta-feira, 30 de agosto de 2017 01:09 Para: ws2-jurisdiction Assunto: [Ws2-jurisdiction] Agenda and Master List of Proposed Issues for Upcoming Jurisdiction Subgroup Meeting at 13:00 UTC 30 August 2017

All:

I have attached the agenda and the master list of proposed issues, collated from all of the recent submissions on the list and in the Google Doc. As a first order of business, we need to confirm that all submissions have been found and added to this list. Please review this before the meeting if possible. Thanks!

I look forward to our upcoming meeting.

Greg

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