November 2016 - Ws2-jurisdiction

Jurisdiction Subgroup: Agenda for Today's Meeting at 19:00 UTC
by Greg Shatan Nov. 21, 2016

Nov. 21, 2016

All: Attached is the agenda for today's meeting at 19:00 UTC, in both Word and PDF formats. Note that some parts of the world have returned to Standard Time, while others are still on Daylight Savings Time. Please check your local time carefully. We look forward to today's call. Best regards, Greg & Vinay

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Re: [Ws2-jurisdiction] [CCWG-ACCT] Fwd: ICANN's US jurisdiction
by policy＠paulmcgrady.com Nov. 21, 2016

Nov. 21, 2016

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Multiple Layers of Jurisdiction Document
by Greg Shatan Nov. 21, 2016

Nov. 21, 2016

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Re: [Ws2-jurisdiction] [CCWG-ACCT] Fwd: ICANN's US jurisdiction
by Pedro Ivo Ferraz da Silva Nov. 15, 2016

Nov. 15, 2016

Dear Parminder, Thank you very much for this contribution. I believe it raises important points about the debate around jurisdiction and should therefore be taken to the discussions in the WS2 subgroup. Contrary to what has been stated by other colleagues, I believe the paper you forwarded brings in new and interesting ideas that are worth evaluating, although I would have concerns with some of them. Anyway, my understanding is that we are currently in a problem assessment phase, where no possible recommendations/alternatives should be discarded beforehand. Regards, Pedro Enviado do meu smartphone Samsung Galaxy. -------- Mensagem original -------- De: "Mueller, Milton L" <milton(a)gatech.edu> Data: 13/11/16 17:59 (GMT-03:00) Para: policy(a)paulmcgrady.com, parminder <parminder(a)itforchange.net>, CCWG Accountability <accountability-cross-community(a)icann.org> Assunto: Re: [CCWG-ACCT] Fwd: ICANN's US jurisdiction While I don’t support the statement as a whole, I think your dismissal is too indiscriminate. I, too, would completely reject Parminder’s discredited argument that setting rules for a TLD named “pharmacy” will result in the global imposition of rules for the entire pharmaceutical sector (or book, or beauty parlors, etc.). This absurdly exaggerates the influence of TLD registries. Even if it were not based on a false assumption, the idea that because ICANN is incorporated in the US the rules its policy processes and registry operators adopt for these TLDs are somehow controlled by the US government is simply false. I also think that option #1 (incorporating ICANN under international law instead of California) was soundly rejected in WS1 and in fact is not a feasible or even coherently formulated option. Option #2, on the other hand, has some merit and certain aspects of it are worth considering. I see no fallacy in the statement, “With three different jurisdictions over these complementary functions, the possibility of any single one being … able to interfere in ICANN's global governance role will be minimized.” I think this could be considered a prudent political risk mitigation strategy. We are not going to change ICANN’s place of incorporation, and it is unlikely that we will change PTI’s place of incorporation so soon after we have stood up the new corporation. But it is not impractical to consider jurisdictional diversity the next time the RZM contract is renewed. (Note that I am characterizing an alternate jurisdiction as a ‘consideration’ and not as a ‘requirement.’ And longer term, as PTI matures they might also take into consideration the possibility of another jurisdiction. The value of this is debatable, given that PTI is a subsidiary of ICANN, but the possibility of separation was deliberately built into the design of the new arrangements. So in any separation process, jurisdictional diversity might be taken into account. --MM From: accountability-cross-community-bounces(a)icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of policy(a)paulmcgrady.com Sent: Friday, November 11, 2016 9:14 AM To: parminder <parminder(a)itforchange.net>; CCWG Accountability <accountability-cross-community(a)icann.org> Subject: Re: [CCWG-ACCT] Fwd: ICANN's US jurisdiction Thanks Parminder. The attachment you shared seems to be a compilation of some of the really terrible ideas which have shown up on this List from time to time. Since these terrible ideas have already been addressed and addressed and addressed on this List, I'm not sure that re-addressing them again at this time would prove useful. However, I didn't want anyone to think that silence (to the latest round of trying to push for the unraveling of WS1) was somehow assent. It isn't. We just really have to get on with the real work of this group and stop constantly reopening and re-addressing all of these fringe ideas. Best, Paul -------- Original Message -------- Subject: [CCWG-ACCT] Fwd: ICANN's US jurisdiction From: parminder <parminder(a)itforchange.net<mailto:parminder@itforchange.net>> Date: Tue, November 08, 2016 7:01 pm To: CCWG Accountability <accountability-cross-community(a)icann.org<mailto:accountability-cross-community@icann.org>> All I thought this may be relevant to those on this list. Regard, parminder -------- Forwarded Message -------- Subject: ICANN's US jurisdiction Date: Wed, 9 Nov 2016 07:23:40 +0530 From: parminder <parminder(a)itforchange.net><mailto:parminder@itforchange.net> To: governance(a)lists.igcaucus.org<mailto:governance@lists.igcaucus.org> <governance(a)lists.igcaucus.org><mailto:governance@lists.igcaucus.org>, BestBitsList <bestbits(a)lists.bestbits.net><mailto:bestbits@lists.bestbits.net>, Forum@Justnetcoalition. Org <forum(a)justnetcoalition.org><mailto:forum@justnetcoalition.org> All As you know, the issue of jurisdiction of ICANN is under consideration at ICANN's community process (in the accountability track where there is a sub group discussing this issue). ICANN is currently meeting in Hyderabad, India, from 3rd to 9th November. Today, on the last day of ICANN's Hyderabad meeting, the enclosed statement was issued by key Indian civil society organisations engaged with Internet governance issues, supported by two key global networks involved in this area. The statement expresses the urgent need for transiting ICANN from being under the jurisdiction of one country, presenting the rationale of why this is important to do. It also lists some possible options of doing so, towards beginning a serious action-oriented deliberation on this very important matter. Unlike what is often understood, the jurisdiction issue is not just a matter of sovereign prestige and self respect of the states but concerns vital matters impacting people's rights. This is especially so as the society gets more and more digitised in all areas. We welcome comments and feedback. The statement has been issued by the following Indian civil society organisations. Centre for Internet and Society<http://cis-india.org/>, Bangalore IT for Change<http://www.itforchange.net/>, Bangalore Free Software Movement of India<https://en.wikipedia.org/wiki/Free_Software_Movement_of_India>, Hyderabad Society for Knowledge Commons<http://www.knowledgecommons.in/>, New Delhi Digital Empowerment Foundation<http://defindia.org/>, New Delhi Delhi Science Forum<http://www.delhiscienceforum.net/>, New Delhi Software Freedom Law Center India, New Delhi Third World Network - India<https://twnetwork.org/>, New Delhi It is supported by the following global networks: Association For Progressive Communications<https://www.apc.org/> Just Net Coalition <http://justnetcoalition.org/> <http://justnetcoalition.org/>We will soon expand this effort to enlist more global support. Best, Parminder <http://justnetcoalition.org/> <http://justnetcoalition.org/> <http://justnetcoalition.org/> <http://justnetcoalition.org/> ________________________________ _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community(a)icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community

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Re: [Ws2-jurisdiction] Multiple Layers of Jurisdiction Document
by avri＠acm.org Nov. 15, 2016

Nov. 15, 2016

Phil, Do you believe that all residents and companies in sanctioned countries are terrorists? Should icann not support the legislate interests of people who may live under tyranny of one sort or another? And do you believe that the US is infallible on deciding who is worthy of doing business with ICANN/IANA. That is the problem with having any country or group of countries determining who ICANN can serve.ICANN and especially IANA, need to serve the world impartially. Avri Sent from my T-Mobile 4G LTE Device -------- Original message --------From: Phil Corwin <psc(a)vlaw-dc.com> Date: 11/15/16 09:13 (GMT+09:00) To: Greg Shatan <gregshatanipc(a)gmail.com> Cc: Avri Doria <avri(a)acm.org>, farzaneh badii <farzaneh.badii(a)gmail.com>, ws2-jurisdiction(a)icann.org Subject: Re: [Ws2-jurisdiction] Multiple Layers of Jurisdiction Document I for one do not believe criminal or terrorist organizations should be registry operators. 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 Sent from my iPad On Nov 14, 2016, at 6:27 PM, Greg Shatan <gregshatanipc(a)gmail.com> wrote: Farzaneh, As you say, collecting issues is important. We then need to analyze them. In the case of a new gTLD, we would need to determine whether an OFAC license would be necessary for a new gTLD applicant from a sanctioned country. I'm not at all certain that is the case. If it is, I would not jump to the conclusion that this is a "grave uncertainty." I think the italicizes language may be an exercise of caution. ICANN could not possibly say that OFAC is required to issue a license, nor can it ever promise a result from any government or other third party. Hence the caveat. ICANN has sought and received OFAC licenses in the past, not because they are "gracious" but because that's the appropriate thing to do. I have absolutely no reason to believe that ICANN would hesitate to do so in the future. One might wonder if the change in relationship and political climate would lead OFAC to be more stingy with licenses, but in the case of ICANN, I think that would be counterproductive. I'm not minimizing the concern, just saying that we need to analyze each step. Greg On Mon, Nov 14, 2016 at 5:37 PM farzaneh badii <farzaneh.badii(a)gmail.com> wrote: Hi I think collecting issues is very important. As an example, I would like to draw your attention to this paragraph in the New gTLD applicant guidebook: "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." p.1-25 - gTLD Applicant Guidebook, Version 2012-06-04 The paragraph goes so far as to say that ICANN is prohibited from providing most goods or services even to the residents of santioned countries. ICANN is gracious enough to request for OFAC license for those not in the SDN list but it also says: OFAC could decide not to issue a requested license! Who would apply for a new gtld from sanctioned countries when facing such grave uncertainty. That's only one example. Best Farzaneh On 13 November 2016 at 13:10, avri doria <avri(a)acm.org> wrote: Hi, As a part time staff member for APC, which signed the letter, I figure I should add my 2 cents. I do not believe the object is to undo the work of WS1 and the establishment of the EC under California rules. That is not an APC goal and I do not think the letter proposes that. But I do believe we need to look at some of the other issues. For example the one that persists to bother me and APC, is that fact that the US can make laws that prohibit ICANN/IANA from doing business with particular countries, whether it is because of boycott or other international reasons. I know we say that has never happened, though there may be some arguments about whether it did or not, but it could happen. Another issue is that given the removal of US oversight the US government commitment made in WSIS and elsewhere to never interfere in IANA relationship with ccTLDs is meaningless. Does this commitment still hold in the current jurisdictional mix if the US government passed laws or made administrative decisions? These are the sorts of thing I think we need to find a answer/solution to. So when I look at the notion of 'immunity' that is the sort I look for. Not that I believe this can be easily achieved. Personally, I do not want to see IANA (the core of the issue and the Internet) prohibited from making a change because of US law, now or ever. I do not believe we can, or even should resolve this in WS2, but we should be aware of these problems and WS2 should recommend that further work after WS2, perhaps, be done to make sure that this and another types of errant US control are not possible. I am personally not looking for relief from the courts on contractual, accountability or EC issues as that is currently part of the accountability solution, and we have yet to see whether that works. It is going to take a few years before we have evidenc on the WS1 solution being effective. But I wonder, must that always be US courts, are there other solutions for some of these court challenges, especially those more applicable to the nationals of other nations. I think there are issues we can't ignore. So collecting the issues and figuring out what further discussion/work needs to be done on them is something that needs to be remembered and dealt with in WS2. Hence my agreement with the fact that a letter was sent indicating that there were concerns that need to be discussed and dealt with. The solution proposed in the letter where just possible avenues to explore, and even if they are impractical, we should not ignore any open issues that people might have. avri --- This email has been checked for viruses by Avast antivirus software. https://www.avast.com/antivirus _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction(a)icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction -- Farzaneh _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction(a)icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction(a)icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction

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FW: [CCWG-ACCT] Fwd: ICANN's US jurisdiction
by Mueller, Milton L Nov. 14, 2016

Nov. 14, 2016

Forgive me, I thought I was sending this to the jurisdiction list but it went to CCWG. Forwarding now to jurisdiction From: accountability-cross-community-bounces(a)icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Mueller, Milton L Sent: Sunday, November 13, 2016 2:59 PM To: policy(a)paulmcgrady.com; parminder <parminder(a)itforchange.net>; CCWG Accountability <accountability-cross-community(a)icann.org> Subject: Re: [CCWG-ACCT] Fwd: ICANN's US jurisdiction While I don’t support the statement as a whole, I think your dismissal is too indiscriminate. I, too, would completely reject Parminder’s discredited argument that setting rules for a TLD named “pharmacy” will result in the global imposition of rules for the entire pharmaceutical sector (or book, or beauty parlors, etc.). This absurdly exaggerates the influence of TLD registries. Even if it were not based on a false assumption, the idea that because ICANN is incorporated in the US the rules its policy processes and registry operators adopt for these TLDs are somehow controlled by the US government is simply false. I also think that option #1 (incorporating ICANN under international law instead of California) was soundly rejected in WS1 and in fact is not a feasible or even coherently formulated option. Option #2, on the other hand, has some merit and certain aspects of it are worth considering. I see no fallacy in the statement, “With three different jurisdictions over these complementary functions, the possibility of any single one being … able to interfere in ICANN's global governance role will be minimized.” I think this could be considered a prudent political risk mitigation strategy. We are not going to change ICANN’s place of incorporation, and it is unlikely that we will change PTI’s place of incorporation so soon after we have stood up the new corporation. But it is not impractical to consider jurisdictional diversity the next time the RZM contract is renewed. (Note that I am characterizing an alternate jurisdiction as a ‘consideration’ and not as a ‘requirement.’ And longer term, as PTI matures they might also take into consideration the possibility of another jurisdiction. The value of this is debatable, given that PTI is a subsidiary of ICANN, but the possibility of separation was deliberately built into the design of the new arrangements. So in any separation process, jurisdictional diversity might be taken into account. --MM From: accountability-cross-community-bounces(a)icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of policy(a)paulmcgrady.com<mailto:policy@paulmcgrady.com> Sent: Friday, November 11, 2016 9:14 AM To: parminder <parminder(a)itforchange.net<mailto:parminder@itforchange.net>>; CCWG Accountability <accountability-cross-community(a)icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] Fwd: ICANN's US jurisdiction Thanks Parminder. The attachment you shared seems to be a compilation of some of the really terrible ideas which have shown up on this List from time to time. Since these terrible ideas have already been addressed and addressed and addressed on this List, I'm not sure that re-addressing them again at this time would prove useful. However, I didn't want anyone to think that silence (to the latest round of trying to push for the unraveling of WS1) was somehow assent. It isn't. We just really have to get on with the real work of this group and stop constantly reopening and re-addressing all of these fringe ideas. Best, Paul -------- Original Message -------- Subject: [CCWG-ACCT] Fwd: ICANN's US jurisdiction From: parminder <parminder(a)itforchange.net<mailto:parminder@itforchange.net>> Date: Tue, November 08, 2016 7:01 pm To: CCWG Accountability <accountability-cross-community(a)icann.org<mailto:accountability-cross-community@icann.org>> All I thought this may be relevant to those on this list. Regard, parminder -------- Forwarded Message -------- Subject: ICANN's US jurisdiction Date: Wed, 9 Nov 2016 07:23:40 +0530 From: parminder <parminder(a)itforchange.net><mailto:parminder@itforchange.net> To: governance(a)lists.igcaucus.org<mailto:governance@lists.igcaucus.org> <governance(a)lists.igcaucus.org><mailto:governance@lists.igcaucus.org>, BestBitsList <bestbits(a)lists.bestbits.net><mailto:bestbits@lists.bestbits.net>, Forum@Justnetcoalition. Org <forum(a)justnetcoalition.org><mailto:forum@justnetcoalition.org> All As you know, the issue of jurisdiction of ICANN is under consideration at ICANN's community process (in the accountability track where there is a sub group discussing this issue). ICANN is currently meeting in Hyderabad, India, from 3rd to 9th November. Today, on the last day of ICANN's Hyderabad meeting, the enclosed statement was issued by key Indian civil society organisations engaged with Internet governance issues, supported by two key global networks involved in this area. The statement expresses the urgent need for transiting ICANN from being under the jurisdiction of one country, presenting the rationale of why this is important to do. It also lists some possible options of doing so, towards beginning a serious action-oriented deliberation on this very important matter. Unlike what is often understood, the jurisdiction issue is not just a matter of sovereign prestige and self respect of the states but concerns vital matters impacting people's rights. This is especially so as the society gets more and more digitised in all areas. We welcome comments and feedback. The statement has been issued by the following Indian civil society organisations. Centre for Internet and Society<http://cis-india.org/>, Bangalore IT for Change<http://www.itforchange.net/>, Bangalore Free Software Movement of India<https://en.wikipedia.org/wiki/Free_Software_Movement_of_India>, Hyderabad Society for Knowledge Commons<http://www.knowledgecommons.in/>, New Delhi Digital Empowerment Foundation<http://defindia.org/>, New Delhi Delhi Science Forum<http://www.delhiscienceforum.net/>, New Delhi Software Freedom Law Center India, New Delhi Third World Network - India<https://twnetwork.org/>, New Delhi It is supported by the following global networks: Association For Progressive Communications<https://www.apc.org/> Just Net Coalition <http://justnetcoalition.org/> <http://justnetcoalition.org/>We will soon expand this effort to enlist more global support. Best, Parminder <http://justnetcoalition.org/> <http://justnetcoalition.org/> <http://justnetcoalition.org/> <http://justnetcoalition.org/> ________________________________ _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community(a)icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community

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Influence of Jurisdiction Stable Draft
by Greg Shatan Nov. 1, 2016

Nov. 1, 2016

All, Here is a copy of the Influence of Jurisdiction Stable Draft. Due to the length of some marginal comments, the PDF does not show their full length. It is best to view the document in word and click on the comments to see their full text. Best regards, Greg

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Google Doc for Jurisdiction Subgroup Status Update
by Greg Shatan Nov. 1, 2016

Nov. 1, 2016

All, Here is a link to the draft Status Update Google doc, for your changes and comments. I need to review the requirements for this document and may make some changes as well, but I don't anticipate making significant changes to the text we discussed on today's call, beyond those in the document now. https://docs.google.com/document/d/1ie4ysgSH97tMciUvAYfk86USOCoIdK6aMQ9QWS2… The document will become stable at 16:00 UTC tomorrow (Friday, October 28), and will be sent to the CCWG staff in anticipation of next week's F2F. A copy is also attached for those who have difficulty accessing Google Docs. Thank you for your comments. Best regards, Greg

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