December 2016 - Ws2-jurisdiction

FW: [CCWG-ACCT] RES: Jurisdiction Proposed Questions and Poll Results
by parminder Jan. 5, 2017

Jan. 5, 2017

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 > >

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Staying Focused in the Jurisdiction Subgroup
by Greg Shatan Jan. 3, 2017

Jan. 3, 2017

All, We are getting ahead of ourselves. Meanwhile, we're not doing the things we should be doing, which will only slow us down in the end. In particular, the discussions of possible "remedies", such as "immunity" or alternative structures for ICANN are, at best, premature, and need to be set aside. We need to focus the subgroup on problems first, consistent with our work plan. Problems will lead to remedies, just as diagnosis leads to treatment. Specifically, the subgroup needs to concentrate on taking suggestions for possible problems arising from "ICANN's jurisdiction" from participants, really discussing these suggestions in the subgroup, and determining as a subgroup whether these suggestions are in fact problems that should be included in our analysis. I'm specifically using "problems" and not "issues", based on a very good suggestion from Phil Corwin: "*Rather than issues, I believe we should be focus on on demonstrable problems. Issues can just consists of debating points absent real world evidence of something broken or substantially sub-optimal requiring a remedy.*" "Problems" conveys much better that we are look for concrete, specific items arising from "ICANN's jurisdiction," particularly with regard to the actual operation of policies and accountability mechanisms (as stated in Annex 12). After that is done, and the subgroup has an agreed list of problems, we will then turn our focus to considering specific possible remedies for specific problems. Discussions of remedies should be held until that time. Discussing remedies now will only delay the proper discussion of remedies by the subgroup. This has also distracted us from resolving issues with the questionnaire. On Tuesday, I sent out a follow-up email on the questionnaire under the Subject "Focus, Working Method and Revisions to Proposed Questions: RESPONSE REQUESTED." So far, there have been very few responses. Please read and respond to that email. We need to see if there is a compromise regarding Question 4 that will garner broad support in the subgroup and satisfy most (if not all) objections raised in the subgroup. Thank you. Greg

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REMINDER: Focus, Working Method and Revisions to Proposed Questions: RESPONSE REQUESTED [was: Jurisdiction Proposed Questions and Poll Results]
by Greg Shatan Jan. 3, 2017

Jan. 3, 2017

REMINDER to READ this email and RESPOND, at least with regard to the questionnaire (see attachment). I've slightly revised the email for clarity. To try and focus this discussion, I'll provide a strawman for how to deal with the alternatives: Preamble -- Use Alternative 1. Question 1 -- Use Alternative 1. Question 2 -- No change Question 3 -- No change. Question 4 -- Use Alternative 1. Thank you for your responses. ---------- Forwarded message ---------- From: Greg Shatan <gregshatanipc(a)gmail.com> Date: Tue, Dec 27, 2016 at 3:28 PM Subject: Focus, Working Method and Revisions to Proposed Questions: RESPONSE REQUESTED [was: Jurisdiction Proposed Questions and Poll Results] To: ws2-jurisdiction(a)icann.org All, I'm sending this to the Jurisdiction subgroup list, since this was initially send to a discussion thread on jurisdiction taking place on the CCWG list. *Please respond here, rather than there. Thank you.* Greg ---------- Forwarded message ---------- From: Greg Shatan <gregshatanipc(a)gmail.com> Date: Tue, Dec 27, 2016 at 2:56 AM Subject: Re: [CCWG-ACCT] RES: Jurisdiction Proposed Questions and Poll Results To: "accountability-cross-community(a)icann.org" <accountability-cross- community(a)icann.org> 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 problems , and then move on to identifying, discussing and arriving at a list of potential remedies for each problem on our list. We are still working on problems . For a remedy to be up for discussion when we move to discussing remedies, that remedy needs to provide a solution to a problem . We can't discuss a potential remedy without having a problem it is intended to solve. If there is a potential "remedy" but it does not solve any of our problems , we won't discuss it. We've already put aside one potential "remedy" until we see whether we identify any problems 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 problems . I strongly suggest we refocus on problems , so that we can get to the discussion of remedies. Once we've agreed on a list of problems , a discussion of remedies will be more productive. Our working method of dealing with problems 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 problems will get broader support ("Alternative 1" on the attachment may fit this description.) Greg *The following responses were received on the Accountability list*: *Parminder*: 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. *Kavouss Arasteh: * 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 *Sam Lanfranco:* 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

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Re: [Ws2-jurisdiction] Staying Focused in the Jurisdiction Subgroup
by Paul Rosenzweig Dec. 30, 2016

Dec. 30, 2016

And to you as well! -- Paul Rosenzweig Sent from myMail app for Android Friday, 30 December 2016, 02:09PM -05:00 from avri doria avri(a)acm.org : >hi, > >Having said it was all a matter of perspective, it would be challenging >to argue otherwise. > >Best wishes for a grand 2017. > >avri > > > >On 30-Dec-16 12:36, Paul Rosenzweig wrote: >> >> Actually both parts are objectively correct. You are free to say >> otherwise of course. >> >> -- >> Paul >> Sent from myMail app for Android >> >> Friday, 30 December 2016, 11:28AM -06:00 from avri doria avri(a)acm.org >> <mailto: avri(a)acm.org >: >> >> >> All a matter of perspective >> > > >--- >This email has been checked for viruses by Avast antivirus software. >https://www.avast.com/antivirus >

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Re: [Ws2-jurisdiction] [CCWG-ACCT] The crusade for clarity continues
by Kavouss Arasteh Dec. 30, 2016

Dec. 30, 2016

John, With all due respect, you are too quick to decide unilaterally, It is not ONLY Kavouss, Parminder, Pedro, AND.... WHO HAVE DIFFICULTIES. The issue has not yet been debated . We are just at the begining on raising questions and you Dear John jumping to conclusions. This is the way that you and your people having the same views as you wants to do. Please wait and be patient Have a nice holidays Kavouss 2016-12-30 6:58 GMT+01:00 parminder <parminder(a)itforchange.net>: > On Friday 30 December 2016 04:29 AM, John Laprise wrote: > > "Any stable jurisdiction where the corporate law provides suitable > accountability would do." > > OK, John, then come to India, I hope you'd agree all stable democracies > provide stable jurisdictions, or at least most of them do. Lets incorporate > ICANN in India. > > Of course, you are going to say but it is already incorporated in the US, > why change. (It is always so much easier to defend the status quo!). I will > tell you why change. A lot of non USians, Indians among them, have shown > discomfort with the application of the current and future US public law to > ICANN, and consider it unacceptable, on the "no legislation without > representation" principle, which is very basic to democratic thinking. > However, somehow, somewhat miraculously (almost) all US based participants > here seem to have developed a strong collective view that "application of a > country's public law to ICANN simply does not matter" (if this is not the > view of most US participants here, pl do let me know that) . > > Ok, I say then, if "application of a country's public law to ICANN simply > does not matter", shift to India, and let Indian public laws apply. Since > it seems to be all the same to USian participants here , but non USian/ > Indian participants are bothered about the issue of US public law, we solve > what is a problem in the eyes of many without taking away anything from > others who dont see the problem. Since, US participants seem not to have > any problem with public laws application in any case. > > But of course, this is just a hypothetical formulation to try to make the > problem of jurisdiction clearer. I am sure people here will never > contemplate such a lowly thing as moving ICANN to India! > > Guys, I have asked this question a few times here, but never get a > response. But I wont stop asking. Would the USians here have accepted if > ICANN had been incorporated in India, and sought no change? Try to honestly > answer this question - if you wont do it publicly, just to yourself. > > parminder > > > This is the crux of the argument regarding jurisdiction. Until advocates > of ICANN relocation can identify a superior jurisdiction acceptable to all, > the question is moot and should be tabled with Kavous's and Parminder's > objections noted. > > > > > > > On Thu, Dec 29, 2016, 4:50 PM Kavouss Arasteh <kavouss.arasteh(a)gmail.com> > wrote: > >> Dear Professor, >> You put too much emphasis on private . >> Please read Bylaws Core value and the R9ole of Governments >> Regards >> Kavouss >> >> 2016-12-29 23:01 GMT+01:00 Mueller, Milton L <milton(a)gatech.edu>: >> >> Milton, since you seem to so very clear about everything, and on a >> crusade to correct everyone's confusions >> >> >> >> MM: Oh dear, I’ve been called a “crusader.” (It almost made me fall off >> my horse.) >> >> >> >> can you give us an example of such "jurisdiction that does not involve >> national borders at all", without it implying an agreement reached among >> states. Are you promoting US jurisdiction as such jurisdiction without >> borders? >> >> >> >> MM: ICANN was based on a strategy of globalization through private law. >> In order to avoid jurisdictional fragmentation of the domain name system, >> it created a global governance agency based on private contracts. Of course >> as a private corp ICANN has to be incorporated somewhere, in this case for >> historical reasons it was the US. It then issues private contracts that >> apply anywhere, like other multinationals. It does not have to be >> incorporated in the US to follow this strategy. Any stable jurisdiction >> where the corporate law provides suitable accountability would do. So the >> short answer to your typically manipulative question is no, I am not >> promoting “US jurisdiction as such,” I am calling attention to the >> rationale behind the original decision to make ICANN a private nonprofit. >> >> >> >> _______________________________________________ >> Accountability-Cross-Community mailing list >> Accountability-Cross-Community(a)icann.org >> https://mm.icann.org/mailman/listinfo/accountability-cross-community >> >> >> _______________________________________________ >> Accountability-Cross-Community mailing list >> Accountability-Cross-Community(a)icann.org >> https://mm.icann.org/mailman/listinfo/accountability-cross-community >> > > > _______________________________________________ > Accountability-Cross-Community mailing listAccountability-Cross-Community@icann.orghttps://mm.icann.org/mailman/listinfo/accountability-cross-community > > > > _______________________________________________ > Accountability-Cross-Community mailing list > Accountability-Cross-Community(a)icann.org > https://mm.icann.org/mailman/listinfo/accountability-cross-community > >

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The crusade for clarity continues
by Mueller, Milton L Dec. 29, 2016

Dec. 29, 2016

Milton, since you seem to so very clear about everything, and on a crusade to correct everyone's confusions MM: Oh dear, I've been called a "crusader." (It almost made me fall off my horse.) can you give us an example of such "jurisdiction that does not involve national borders at all", without it implying an agreement reached among states. Are you promoting US jurisdiction as such jurisdiction without borders? MM: ICANN was based on a strategy of globalization through private law. In order to avoid jurisdictional fragmentation of the domain name system, it created a global governance agency based on private contracts. Of course as a private corp ICANN has to be incorporated somewhere, in this case for historical reasons it was the US. It then issues private contracts that apply anywhere, like other multinationals. It does not have to be incorporated in the US to follow this strategy. Any stable jurisdiction where the corporate law provides suitable accountability would do. So the short answer to your typically manipulative question is no, I am not promoting "US jurisdiction as such," I am calling attention to the rationale behind the original decision to make ICANN a private nonprofit.

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FW: [CCWG-ACCT] RES: Jurisdiction Proposed Questions and Poll Results
by Mueller, Milton L Dec. 29, 2016

Dec. 29, 2016

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. The current Q4, as I have said, does a lousy job of this. 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. 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, which doesn't seem so nice after the Republican takeover 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. So your holding up of this option is what drives Corwin's sense that this debate is about whether ICANN turns into an IGO. 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) and worse, immunity from lawsuits. Are you kidding me? You want ICANN to be immune from lawsuits?

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Re: [Ws2-jurisdiction] [CCWG-ACCT] RES: Jurisdiction Proposed Questions and Poll Results
by Kavouss Arasteh Dec. 29, 2016

Dec. 29, 2016

Dear Professor, We are not at any university. Pls kindly refrain giving English Lesson to others . You might have a given style in writing other could have different style when they write. Globalization versus internationalization discussion is a semantic issue and further discussion on that seems counterproductive. This arguments you have launched do not help at all. Instead of criticizing each other we need to be objective and constructive. You may defend your position for ever while attempting to prove that others are wrong and you are the only one who is right, that is your very right to do so but you should not oppose to the positions of others forever. The question is not that someone is right and someone else is wrong, the question is that we need to understand each other and build up consensus The more you insist on your position , the more people would doubt about the validity of your arguments. By the way the tone and style you have used in saying *,” I can only smile and ask you to untie the knots in your words (or thinking?) * Seems unusual. Best Regards Kavouss 2016-12-29 5:54 GMT+01:00 Mueller, Milton L <milton(a)gatech.edu>: > 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. > > > > 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. > > > > > _______________________________________________ > Accountability-Cross-Community mailing list > Accountability-Cross-Community(a)icann.org > https://mm.icann.org/mailman/listinfo/accountability-cross-community > >

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FW: [CCWG-ACCT] RES: Jurisdiction Proposed Questions and Poll Results
by Mueller, Milton L Dec. 29, 2016

Dec. 29, 2016

This was sent to CCWG but intended for the jurisdiction subgroup > -----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(a)itamaraty.gov.br> > Datum: 24. Dezember 2016 um 15:53:55 MEZ > An: Greg Shatan <gregshatanipc(a)gmail.com>, parminder > <parminder(a)itforchange.net>, Kavouss Arasteh > <kavouss.arasteh(a)gmail.com> > Cc: accountability-cross-community(a)icann.org <accountability-cross- > community(a)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(a)icann.org [accountability- > cross-community-bounces(a)icann.org] em nome de parminder > [parminder(a)itforchange.net] > Enviado: quinta-feira, 22 de dezembro de 2016 14:01 > Para: Kavouss Arasteh; Greg Shatan > Cc: accountability-cross-community(a)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(a)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/Jurisdicti > on%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/jpl > apri 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(a)gmail.com><mailto:jlaprise@gmail.com>; accountability-cross- > community(a)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(a)icann.org<mailto:accountability-cross-community- > bounces(a)icann.org> [mailto:accountability-cross-community- > bounces(a)icann.org] On Behalf Of parminder > Sent: Monday, December 19, 2016 7:10 AM > To: > accountability-cross-community(a)icann.org<mailto:accountability-cross- > community(a)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(a)icann.org<mailto:Accountability-Cross- > Community(a)icann.org> > > https://mm.icann.org/mailman/listinfo/accountability-cross-community > > > _______________________________________________ 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 > _______________________________________________ > Accountability-Cross-Community mailing list Accountability-Cross- > Community(a)icann.org > https://mm.icann.org/mailman/listinfo/accountability-cross-community

4 4

Focus, Working Method and Revisions to Proposed Questions: RESPONSE REQUESTED [was: Jurisdiction Proposed Questions and Poll Results]
by Greg Shatan Dec. 28, 2016

Dec. 28, 2016

All, I'm sending this to the Jurisdiction subgroup list, since this was initially send to a discussion thread on jurisdiction taking place on the CCWG list. *Please respond here, rather than there. Thank you.* Greg The following responses were received on the Accountability list: *Parminder*: 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. *Kavouss Arasteh: * 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 *Sam Lanfranco:* 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 ---------- Forwarded message ---------- From: Greg Shatan <gregshatanipc(a)gmail.com> Date: Tue, Dec 27, 2016 at 2:56 AM Subject: Re: [CCWG-ACCT] RES: Jurisdiction Proposed Questions and Poll Results To: "accountability-cross-community(a)icann.org" < accountability-cross-community(a)icann.org> 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(a)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(a)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(a)itamaraty.gov.br> >> >> Datum: 24. Dezember 2016 um 15:53:55 MEZ >> >> An: Greg Shatan <gregshatanipc(a)gmail.com>, parminder >> >> <parminder(a)itforchange.net>, Kavouss Arasteh >> >> <kavouss.arasteh(a)gmail.com> >> >> Cc: accountability-cross-community(a)icann.org <accountability-cross- >> >> community(a)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(a)icann.org [accountability- >> >> cross-community-bounces(a)icann.org] em nome de parminder >> >> [parminder(a)itforchange.net] >> >> Enviado: quinta-feira, 22 de dezembro de 2016 14:01 >> >> Para: Kavouss Arasteh; Greg Shatan >> >> Cc: accountability-cross-community(a)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(a)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(a)gmail.com><mailto:jlaprise@gmail.com>; accountability-cross- >> >> community(a)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(a)icann.org<mailto:accountability-cross-community- >> >> bounces(a)icann.org> [mailto:accountability-cross-community- >> >> bounces(a)icann.org] On Behalf Of parminder >> >> Sent: Monday, December 19, 2016 7:10 AM >> >> To: accountability-cross-community(a)icann.org<mailto:accountabili >> ty-cross- >> >> community(a)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(a)icann.org<mailto:Accountability-Cross- >> >> Community(a)icann.org> >> >> >> >> https://mm.icann.org/mailman/listinfo/accountability-cross-community >> >> >> >> >> >> _______________________________________________ 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 >> >> _______________________________________________ >> >> Accountability-Cross-Community mailing list Accountability-Cross- >> >> Community(a)icann.org >> >> https://mm.icann.org/mailman/listinfo/accountability-cross-community >> > _______________________________________________ >> > Accountability-Cross-Community mailing list >> > Accountability-Cross-Community(a)icann.org >> > https://mm.icann.org/mailman/listinfo/accountability-cross-community >> > >> >> >> >> --- >> This email has been checked for viruses by Avast antivirus software. >> https://www.avast.com/antivirus >> >> _______________________________________________ >> Accountability-Cross-Community mailing list >> Accountability-Cross-Community(a)icann.org >> https://mm.icann.org/mailman/listinfo/accountability-cross-community >> > > _______________________________________________ > Accountability-Cross-Community mailing list > Accountability-Cross-Community(a)icann.org > https://mm.icann.org/mailman/listinfo/accountability-cross-community > >

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