December 2016 - Ws2-jurisdiction

Third Draft of Experience Solicitation Questions
by Greg Shatan Dec. 7, 2016

Dec. 7, 2016

All: Based on discussions on our last call and the list, I've revised these questions as follows (added text underlined). Please reply to this email with any comments or suggested changes. Greg 1. Has your business, your privacy or your ability to use or purchase DNS-related services been affected by ICANN's jurisdiction* in any way? If the answer is Yes, please describe specific cases, situations or incidents, including the date, the parties involved, and links to any relevant documents. Please note that *“affected”* may *refer to *positive *and/*or negative *effects*. 2. Has ICANN's jurisdiction* affected any dispute resolution process or litigation related to domain names you have been involved in? If the answer is Yes, please describe specific cases, situations or incidents, including the date, the parties involved, and links to any relevant documents. Please note that *“affected”* may *refer to* positive *and/*or negative *effects*. 3. Do you have copies of and/or links to any *verifiable* reports of experiences of other parties that would be responsive to the questions above? If the answer is yes, please provide these copies and/or links. _____________________________ * 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 or contacts with that country, or (c) any “choice of law” or venue provisions in agreements with ICANN.

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Agenda for Jurisdiction Subgroup Meeting #12
by Greg Shatan Dec. 6, 2016

Dec. 6, 2016

All, Here is the agenda for Meeting #12 at 19:00 UTC on December 5. Please continue to discuss the "experience solicitation" questions and the proposed additional question between now and then. Attention to the Google doc at https://docs.google.com/document/d/1_uxN8A5J3iaofnGlr5gYoFVKudgg_DuwDgIuyIC… is also important to keep our work moving forward. Greg

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Notes, recordings and transcript for WS2 Jurisdiction Subgroup Meeting # 12 | 5 December
by MSSI Secretariat Dec. 6, 2016

Dec. 6, 2016

Hello all, The notes, recordings and transcripts for CCWG Accountability WS2 Jurisdiction Subgroup Meeting #12 – 5 December 2016 will be available here: https://community.icann.org/x/XITDAw A copy of the notes may be found below. Also, as requested on the call today, here is a link for Google Doc assistance - please see tutorial: https://www.youtube.com/watch?v=CeFJvXhFJd8[youtube.com<https://www.youtube.com/watch?v=CeFJvXhFJd8%5byoutube.com>] Thank you. With kind regards, Brenda Brewer MSSI Projects & Operations Assistant ICANN - Internet Corporation for Assigned Names and Numbers Notes: (including relevant portions of the chat): 1. Welcome Greg Shatan: Vinay Kasari unfortunately unavailable. Also we are competing with IGF. Any changes to SOI's? (none)_. 2. Discussion of reformulated “experience” questions Greg Shatan: Any input on the 3 questions as circulated? David McAuley: Thank you for getting us here GS - Am not a fan of these questions but given the discussions this is the best we can get. Greg Shatan: any objections to starting the process to publishing these? David McAuley: I gather we have not decided on the process? Greg Shatan: Correct DM - process for this is point 4 on our agenda today. No other comments so these 3 are good. Let us now look at the additional question (#4) 3. Discussion of additional question a. Formulation of question Greg Shatan: We have rough consensus on the previous questions but not on this one. Neither do we have a stable draft of this question. Any comments on the question. David McAuley: Does not specify a point of view and could cause issues in analyzing the responses. Greg Shatan: Question used to be WHAT DO YOU THINK and then mutated. Pedro da Silva: Generally I favour more straightforward and general type questions - however given the inputs I would support this proposed text - but this question HAS to be part of the questions. Greg Shatan: Any other comments? Given the limited number of people participating we will have to put this on the list. Let us now talk about including the question. b. Whether to include the question Javier Rua-Jovet: If I may, I feel this question is quite clear, balanced and straightforward. Cheryl Langdon-Orr (CLO): yes indeed to the list Pedro da Silva - [GAC Brasil]: I have already expressed my viewpoint about this in my comment David McAuley: I do not support asking this question. Phil Corwin: Share DM's misgivings and do not really support sending it out. Greg Shatan: To PC I would note that there is a footnote. Cheryl Langdon-Orr: You can count me as not in favour of sending this out. Fluffy questions get fluffy answers - in the end it gives very little results. Greg Shatan: Temperature check - support for sending the question? (2 for 5 against). Consistent with discussions on the list. Given the low numbers we should put this back on the list. David McAuley (RySG): appropriate for list, agreed Pedro sa Silva: IGF is an issue. should go to the list. Greg Shatan: will work with staff about how to poll the group on this. 4. Mechanics and details of the questionnaire process Greg Shatan: KA has brought up that the questions should go to the plenary. a. Introduction to questions Greg Shatan: the SOAC questions had an introduction. I think this would be very important in our case. Any thoughts on this? some support no objections - would need a drafting team. General agreement. DM has offered to help draft. b. Review by CCWG Mathieu Weill: The precedent we have set with the SOAC sub-group should be the basis for this. As such the questions should be shared with the plenary for approval. c. How to send out Greg Shatan: ICANN community or wider? Pedro da Silva: I would support wider distribution and should not be restricted and we should use the standard ICANN public consultation. David Mcauley: Depends on expected turn around time. Greg Shatan: Not really looking at trying to use the formal ICANN Public Consultation. This is not what this is. May not be practical to send this out prior to end of year if we need Plenary approval (next meeting is Dec. 14 and the Jan 11). d. Who to send it to e. How to collect responses David McAuley (RySG): if we go free form pdf we need a word limit Greg Shatan: We have some tendencies as to a process - we will gather these and send to the list. 5. Discussion of “Influence of ICANN’s existing jurisdiction” document Greg Shatan: Need to regain our momentum on these documents. Mathieu Weill: The sub-groups were made for working. David McAuley: As an original sceptic of Google docs I can say that once you get in it its fine. 6. AOB Greg Shatan: any AOB (none) Action Item - Staff to recirculate Google Docs Primer link to this sub-group. Brenda Brewer: For Google Doc assistance - please see tutorial: https://www.youtube.com/watch?v=CeFJvXhFJd8[youtube.com] Mathieu Weill: Let's also acknowledge that some colleagues do not get access to Google Doc as part of their employers IT security policies Mathieu Weill: Comments via PDF and emails should be ok 7. Adjourn Greg Shatan: Adjourned. Documents Presented · Experience Questions.pdf<https://community.icann.org/download/attachments/63145052/Experience%20Ques…> · Additional Question.pdf<https://community.icann.org/download/attachments/63145052/Additional%20Ques…> · InfluenceofExistingJurisdictions_5 Dec.pdf<https://community.icann.org/download/attachments/63145052/InfluenceofExisti…>

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Fwd: Questions for Today's Call
by Greg Shatan Dec. 5, 2016

Dec. 5, 2016

All, So you have the questions broken out separately, I've attached copies to this email. These will be put on screen in the Adobe Room. Greg

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Jurisdiction mandate
by avri doria Dec. 1, 2016

Dec. 1, 2016

Hi, Much has been said about our mandate. I went and grabbed the appropriate text from the ByLaws and the Proposal. --- /Bylaws/ 277.1.b (vi) Addressing jurisdiction-related questions, including how choice of jurisdiction and applicable laws for dispute settlement impact ICANN's accountability; /from Report/ Jurisdiction 26 Jurisdiction directly influences the way ICANN’s accountability processes are structured and operationalized. The fact that ICANN is incorporated under the laws of the U.S. State of California grants the corporation certain rights and implies the existence of certain accountability mechanisms. It also imposes some limits with respect to the accountability mechanisms it can adopt. 27 The topic of jurisdiction is, as a consequence, very relevant for the CCWG-Accountability. ICANN is a nonprofit public benefit corporation incorporated in California and subject to applicable California state laws, applicable U.S. federal laws and both state and federal court jurisdiction. ICANN is subject to a provision in paragraph eight(1) of the Affirmation of Commitments, signed in 2009 between ICANN and the U.S. Government. 28 ICANN’s Bylaws (Article XVIII) also state that its principal offices shall be in California. 29 The CCWG-Accountability has acknowledged that jurisdiction is a multi-layered issue and has identified the following "layers”: * Place and jurisdiction of incorporation and operations, including governance of internal affairs, tax system, human resources, etc. * Jurisdiction of places of physical presence. * Governing law for contracts with registrars and registries and the ability to sue and be sued in a specific jurisdiction about contractual relationships. * Ability to sue and be sued in a specific jurisdiction for action or inaction of staff and for redress and review of Board action or inaction, including as relates to IRP outcomes and other accountability and transparency issues, including the Affirmation of Commitments. * Relationships with the national jurisdictions for particular domestic issues (ccTLDs managers, protected names either for international institutions or country and other geographic names, national security, etc.), privacy, freedom of expression. * Meeting NTIA requirements. 30 At this point in the CCWG-Accountability’s work, the main issues that need to be investigated within Work Stream 2 relate to the influence that ICANN´s existing jurisdiction may have on the actual operation of policies and accountability mechanisms. This refers primarily to the process for the settlement of disputes within ICANN, involving the choice of jurisdiction and of the applicable laws, but not necessarily the location where ICANN is incorporated: * Consideration of jurisdiction in Work Stream 2 will focus on the settlement of dispute jurisdiction issues and include: o Confirming and assessing the gap analysis, clarifying all concerns regarding the multi-layer jurisdiction issue. o Identifying potential alternatives and benchmarking their ability to match all CCWG-Accountability requirements using the current framework. o Consider potential Work Stream 2 recommendations based on the conclusions of this analysis. 31 A specific Subgroup of the CCWG-Accountability will be formed to undertake this work. (1) 8. ICANN affirms its commitments to: (a) maintain the capacity and ability to coordinate the Internet DNS at the overall level and to work for the maintenance of a single, interoperable Internet; (b) remain a not for profit corporation, headquartered in the United States of America with offices around the world to meet the needs of a global community; and (c) to operate as a multi stakeholder, private sector led organization with input from the public, for whose benefit ICANN shall in all events act. rec 12 line 234 Addressing jurisdiction-related questions, namely: “Can ICANN’s accountability be enhanced depending on the laws applicable to its actions?” The CCWG-Accountability anticipates focusing on the question of applicable law for contracts and dispute settlements. --- Language that speaks of choice, applicable laws, and enhancement hardly seems to rest on only understanding the past, a past that was experienced when the current condition of transition had not been achieved. They also do not seem to limit our questions and discussion to the status quo. Even when speaking of 'existing jurisdiction' it speaks of effects that it "may have". Not that it has been shown to have in the past. It speaks of "clarifying all concerns" and ïdentifying alternatives". >From my re-reading, neither a narrow based questionnaire nor a narrow approach seem consistent with our mandate or the job we need to get done. avri --- This email has been checked for viruses by Avast antivirus software. https://www.avast.com/antivirus

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first draft of fact solicitation questions
by Mueller, Milton L Dec. 1, 2016

Dec. 1, 2016

CW and I have agreed on the following draft: Request for stakeholder input on jurisdiction issues The Jurisdiction subgroup of the CCWG Accountability is asking for the community to provide factual input on the following questions: 1. Has your business, your privacy or your ability to use or purchase DNS-related services, been affected by ICANN's jurisdiction in any way? If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents. 2. Has ICANN's jurisdiction affected any dispute resolution process or litigation related to domain names you have been involved in? If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents. Dr. Milton L. Mueller Professor, School of Public Policy Georgia Institute of Technology

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