September 2016 - Ws2-jurisdiction

Link to Scope/Focus Document
by Greg Shatan Sept. 16, 2016

Sept. 16, 2016

All: As discussed on last week's call, a document has been started dealing specifically with proposed Scope/Focus/Main Issues for this Subgroup. Here is the link: https://docs.google.com/document/d/1N2eCmjbA6bxJxCEluEHJIBzP_sGPN6krEqDshA0… Greg and Vinay

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Notes, recordings, transcript for WS2 Jurisdiction Subgroup Meeting #2_8 September 2016
by MSSI Secretariat Sept. 15, 2016

Sept. 15, 2016

Hello all, The notes, recordings and transcripts for CCWG Accountability WS2 Jurisdiction Subgroup Meeting #2 - 8 September 2016 will be available here: https://community.icann.org/x/YhKsAw A copy of the notes may be found below. Thank you. With kind regards, Brenda Brewer MSSI Projects & Operations Assistant ICANN - Internet Corporation for Assigned Names and Numbers Notes Welcome/Admin Tatiana Tropina audio only for the moment. No changes to SOIs. Document: https://community.icann.org/pages/viewpage.action?pageId=61608546&preview=/… * Meeting Time Rotation Greg Shatan: will rotate between 1300 and 1900 slots leaving aside the 0500. May vary days of the week but will avoid 1900 on Friday. Kavouss Arasteh: could we shift 1900 to 2000? Bernard Turcotte: Schedule will be reviewed with change to daylight savings later in the fall. * Work Plan and Schedule Overview (attached). Looking to have a deliverable complete in February 2017. https://community.icann.org/pages/viewpage.action?pageId=61608546&preview=/… Greg Shatan: This work plan assumes we are a Complex project. Presentation of the slide. Milton Mueller: this schedule seems unrealistic to me. We take 2.5 months to develop a work plan and don't talk substance until December, then we complete our "deliverable" in only one month? David McAuley: We may be able to get into substance by asking participants to contribute to a gap analysis between the accountability framework that is being implemented vs its applicability vs jurisdictions. Greg Shatan: Need a rolling list of action items. The first item should be this gap analysis. Farzaneh Badii: Greg as to gap analysis you say in the doc that: I think there was a general conclusion that ICANN's current jurisdiction didn't result in any significant "gaps" relating to ICANN accountability. Whether there is a formal "gap analysis" is another question, and one we need to explore. David McAuley: Do not remember any formal gap analysis from WS1. This is about the settlement of disputes jursidiction. Kavouss Arasteh: there was no formal conclusion in WS1 that there was no gap. Kavouss Arasteh: was NOTa general conclusion that ICANN's current jurisdiction didn't result in any significant "gaps" relating to ICANN accountability. Whether there is a formal "gap analysis" is another question, and one we need to explore. Jorge Cancio (GAC Switzerland): We had very general discussions - that is what we did... Jorge Cancio (GAC Switzerland): anyway what is on the ws1 final papers is what represents our agreements... David McAuley: agree w/Kavouss re gap - we have to check * Plan to Develop Detailed Work Plan & Schedule * Plan for September/October (see attached) * Suggestions for overall Work Plan * Our Goal is a Deliverable * Discussion of Scope * Do we begin with Scope? * Jordan Carter lightning talk suggested being "upfront about our interests" * Detailed Reading of Google Doc (Staff Paper, as revised and annotated by Members of Subgroup) Kavouss Arasteh: Not in favor of Applicable Law? Greg Shatan: no issue since it is in Annex 12. David McAuley: disputes should include legal actions vs ICANN in various jurisdictions? Milton Mueller: so jurisdictional effects on two distinct things: 1) accountability mechanisms; 2) actual operation of policies (whatever that means) And by 2) we are referring primarily to dispute resolution jorge cancio (GAC Switzerland): At the same time we said that this refers "primarily" to 1) settlement of disputes, including choice of jurisdiction and applicable laws, what disputes "within ICANN" means could also be useful. Greg Shatan: Within ICANN implies actors within ICANN but it would seem undluly restrictive to say this only includes ICANN's internal dispute resolution processes. jorge cancio (GAC Switzerland): within ICANN I guess covers all parties affected by ICANN decisions and which may bring an internal claim against it. Kavouss Arasteh: why NOT NECESSARILY? David McAuley: From WS1 recollection the NECESSARILY comes in if the gap analysis notes that the accountability mechanisms are broken (material problem) because of jurisdiction. Edward Morris: My recollection is the same as David's David McAuley: Thanks Kavouss, and I think that is part of our task. Good question you asked. Milton Mueller: I think many of these points could be best pursued on the list, in writing David McAuley: +1 Milton Avri Doria: so ICANN is only incorporated in one place and these lesser 'registrations' do not affect jurisdiction? Registrations and their relation to incorporation are essentially different with respect to jurisdictional obligations? Is so where are jurisdictional issues related to multiple registrations dealt with? Vinay Kesari: Agree with Paul. I think ICANN has gone on record stating specifically that local offices are subject to local laws on issues such as employment. Kavouss Arasteh: best to use both email list and Google doc. As to this question is it not too detailed at this time? Avri Doria: what is the status of the ICANN presence in non-US jurisdiction? Greg Shatan: Action Item - this should be answered by ICANN legal. Samantha Eisner: We have to adhere to laws that allow us to have offices in different locations but I can confirm that we have not incorporated in any other location Samantha Eisner: ICANN typically is a "branch" location or a registered foreign office equivalent Jeff Neuman: I would like to know the difference between "Engagement Centers", "HUBs", "Offices", etc/ Avri Doria: Not incorporated? Also not registered as some sort of company? Jeff Neuman: Is there a way to get those definitions from ICANN staff? Jeff Neuman: I have to admit I never understood Fadi's distinctions Samantha Eisner: Yes, Jeff Greg Shatan: Will start the next version of the google doc and circulate. Vinay Kesari: Hi Avri, many countries (India for example) allow a foreign company to set up a representative/ branch office locally. This is not a separate legal entity, can't sue/ be sued. But it requires a registration * Creation of Scope Document? * Other Potential Inputs to our Work * More Detailed Review of Lightning Talks * Pertinent Literature (influenced by Scope) * Experts/Legal Advice * AOB * Adjourn Greg Shatan: Adjourned

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Agenda for today's meeting
by Greg Shatan Sept. 14, 2016

Sept. 14, 2016

All: Please see the agenda below for today's call. The Google Doc will be copied into PDF and word documents closer to the meeting, to allow continued comment today. *AGENDA* 1. Welcome, attendance, SOIs, etc. 2. ICANN's recently released IANA Stewardship Q&A, particularly #7 3. Scope discussion: - Continue Detailed Reading of Google Doc (Staff Paper, as revised and annotated by Members of Subgroup) - Commence Discussion of draft Scope/Focus Google doc (to be circulated) 4. Other Potential Inputs to our Work: - More Detailed Review of Lightning Talks (summarized in Staff Paper) - Pertinent Literature (influenced by Scope) - Experts/Legal Advice 5. AOB 6. Upcoming Meetings 7.Adjourn Greg and Vinay

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Committee Hearings on IANA Transition
by Greg Shatan Sept. 14, 2016

Sept. 14, 2016

All: There's quite a lot of discussion of jurisdictional issues in today's hearing. I hope we can get a transcript in time for next week's meeting. You may wish to tune in. Greg

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Fwd: [CCWG-ACCT] Answers to some common questions being encountered by the ICANN staff
by Greg Shatan Sept. 14, 2016

Sept. 14, 2016

All, In connection with our upcoming call, I wanted to call your attention to this ICANN statement, and in particular, item #7. Greg ---------- Forwarded message ---------- From: *Bruce Tonkin* <Bruce.Tonkin(a)melbourneit.com.au> Date: Friday, September 9, 2016 Subject: [CCWG-ACCT] Answers to some common questions being encountered by the ICANN staff To: "accountability-cross-community(a)icann.org" < accountability-cross-community(a)icann.org> From https://www.icann.org/iana-stewardship-questions Answering some of your questions on the stewardship transition By delivering the IANA stewardship transition proposal <https://www.icann.org/resources/pages/board-ntia-transmissions-2016-06-13-en> to the U.S. Department of Commerce's National Telecommunications and Information Administration (NTIA) in March, the global Internet community executed the largest multistakeholder process <https://www.icann.org/resources/pages/iana-accountability-participation-sta…> ever undertaken in Internet governance. The transition proposal achieved the broad support thousands of Internet stakeholders by reinforcing the current multistakeholder system and making ICANN more accountable to Internet users around the world. The proposal also garnered support from global representatives of industry, the technical community, civil society groups, academics, governments and end users. The timely completion of the transition will help preserve the continued openness of the Internet by entrusting its oversight with those who have made the greatest investments in its extraordinary success so far – the volunteer-based multistakeholder community. Still, some questions remain about the nature of the IANA functions, ICANN, and the likely impacts of the transition and we wanted to answer them for you in one place. 1. Does the transition threaten Internet freedom? No. The United States Government's contract with ICANN does not give the U.S. any power to regulate or protect speech on the Internet. The IANA functions are technical – not content – based. The freedom of any person to express his or herself on the globally interoperable Internet is in fact enhanced by the transition moving forward. ICANN is not, has not been, and by its Bylaws cannot become, a place for regulation of content. Ensuring that the Internet remains open, interoperable and stable in the long-term helps protect Internet freedom. Some believe that extending the contract may actually lead to the loss of Internet freedom because it could fuel efforts to move Internet governance decisions to the United Nations (U.N.). Former Homeland Security Secretary Michael Chertoff and retired Vice Chairman of the Joint Chiefs of Staff James Cartwright stated <http://www.politico.com/agenda/story/2016/06/keep-internet-free-and-open-ic…> that, "rejecting or even delaying the transition would be a gift to those governments threatened by a free and open Internet." 2. Will countries be able to censor speech on the Internet after the transition? No more so than they can today. Right now, there is nothing about ICANN or its contract with the U.S. Government that prevents a country from censoring or blocking content within its own borders. ICANN is a technical organization and does not have the remit or ability to regulate content on the Internet. That is true under the current contract with the U.S. Government and will remain true without the contract with the U.S. Government. The transition will not empower or prohibit sovereign states from censoring speech. Many leading civil society and advocacy groups <https://www.accessnow.org/cms/assets/uploads/2016/05/CSstatementonIANAtrans…> [PDF, 106 KB] actually argue that the transition will enhance free speech on the Internet. Human Rights Watch, Access Now, Article19, Open Technology Institute and Public Knowledge, support the transition because "executing upon the IANA transition is the best way to ensure the continued functionality of the global internet and to protect the free flow of information so essential to human rights protection." 3. Will ICANN be more susceptible to capture by a single entity after the transition? No. ICANN's multistakeholder model is designed to ensure that no single entity, whether country, business or interest group, can capture ICANN or exclude other parties from decision-making processes. Features of this model include open processes where anyone can participate, decisions made by consensus, established appeals mechanisms, and transparent and public meetings. These elements are all reinforced in the community transition proposal <https://www.icann.org/resources/pages/board-ntia-transmissions-2016-06-13-en> and have been building blocks for the free and open Internet we see today. NTIA, along with other U.S. Government agencies and a panel of corporate governance experts, conducted a thorough review of the transition proposal <https://www.ntia.doc.gov/report/2016/iana-stewardship-transition-proposal-a…>. NTIA confirmed that the proposal mitigated the risk of a government or third-party capture of ICANN after the transition. Columbia University's John Coffee also concluded that <http://www.newyorklawjournal.com/id=1202762978409/Adventures-in-Corporate-G…>, "ICANN has been given so many checks and balances that it is difficult to imagine a hostile takeover," after the transition. 4. Will ICANN seek oversight by the U.N. to maintain its antitrust exemption after the transition? No. ICANN is not, and never has been exempted from antitrust laws. ICANN has not been granted an antitrust exemption through any of its contracts with NTIA or the U.S. Department of Commerce. No court ruling in favor of ICANN has ever cited an antitrust exemption to support its ruling. This past July, NTIA Administrator Larry Strickling addressed the concerns <https://www.ntia.doc.gov/speechtestimony/2016/remarks-assistant-secretary-s…> about the possible antitrust liability of a post-transition ICANN and reaffirmed that "ICANN always has and will continue to be subject to antitrust laws." After the transition, ICANN will have no mandate, need or reason to seek to be overseen by another governmental or inter-governmental group for protection. NTIA also would not allow the transition to occur if ICANN were to replace the role of the U.S. Government with another government or inter-governmental organization. 5. Will governments have more control over the Internet after the transition? No. The transition proposal does not increase the role of governments over the Internet or ICANN as an organization. The multistakeholder model appropriately limits the influence of governments and intergovernmental organizations to an advisory role in policy development. More than 160 governments actively participate as a single committee and must come to a consensus before policy advice can be issued. After the transition, there will be times where the ICANN Board must give special consideration to the public policy advice of governments. However, this will only happen when there is no objection from any government in the committee – which includes the United States. This is a stricter requirement than is currently in place for government advice. In a March testimony before Congress <http://docs.house.gov/meetings/IF/IF16/20160317/104682/HHRG-114-IF16-Wstate…> [PDF, 103 KB], Intel Corporation stated that the transition proposal "strikes the right balance of including governments in a true multistakeholder community, while not giving them increased influence over ICANN's decisions," after the transition. 6. Does delaying the transition by one or two years have any negative consequences? Yes, any delay of the transition could have significant global consequences. The Internet is a voluntary, trust-based system. A delay would introduce uncertainty, for businesses and other stakeholders, which could have long-term business, social, cultural, political and economic impacts. This past March, U.S. Ambassador David Gross testified <http://www.commerce.senate.gov/public/index.cfm/hearings?ID=418B1D81-1F0B-4…> that, "the clearest impact [of a delay] is on the broader, global community. It will signal that the U.S. has changed its position and no longer believes in a private-sector led internet and that governments will play a primary role in making the final decision. Russia, China, and others will welcome such a decision." In addition, the Centre for International Governance Innovation added <https://www.ourinternet.org/press/statement-by-gcig-regarding-iana-transiti…> to this sentiment by expressing that "[A delay will] increase distrust, and will likely encourage some governments to pursue their own national or even regional Internets." 7. Will ICANN relocate its headquarters outside of the United States after the transition? No. ICANN will not relocate its corporate headquarters location after the transition. The transition proposal clearly states <https://www.ianacg.org/icg-files/documents/IANA-transition-proposal-final.p…> [PDF, 2.32 MB] that "the legal jurisdiction in which ICANN resides is to remain unchanged." California law is the basis for the new mechanisms created to empower the ICANN community and hold ICANN the organization, Board and community, accountable. In addition, ICANN's Articles of Incorporation are filed under California law, and its Bylaws state that ICANN's headquarters are in California. 8. Is it illegal to allow the transition to move forward without congressional approval because it is a transfer of U.S. property? No. ICANN is not aware of any U.S. Government property that would be transferred as a result of the transition. In a letter to Chairman Grassley and Chairman Goodlatte <http://www.ntia.doc.gov/files/ntia/publications/20160810_-_ntia_response_to…> [PDF, 1.25 MB] last month, NTIA stated that the Department of Commerce Office of General Counsel conducted a legal review of this issue and advised NTIA that transition would not result in the transfer of U.S. Government property, and that, in the view of the Department, the authoritative root zone file is not U.S. Government property. 9. Will Verisign have the ability to raise prices of.com domain names on 1 October 2016 as a result of the transition? No. The cost of .com domains is capped at $7.85 until 30 November 2018. The current pricing of the .com registry is defined by two separate contracts (1) the .com Registry Agreement between Verisign and ICANN; and (2) the Cooperative Agreement between Verisign and the Department of Commerce. After 2018, Verisign and NTIA will have to negotiate to change the terms for the Cooperative Agreement or agree to end the Cooperative Agreement before discussing new pricing of the .com domain with ICANN. In letters <https://www.ntia.doc.gov/files/ntia/publications/2016-8-31_doj_response_to_…> [PDF, 851 KB] to Chairman Cruz, Chairman Lee, and Chairman Duffy last week, the Assistant Attorney General stated that, consistent with past practices, it is expected that NTIA will seek the advice of the U.S. Department of Justice on any competition issues implicated by the extension of these two contracts. 10. Do the recent independent review process (IRP) decisions regarding applications for new generic top level domains prove that ICANN is not sufficiently transparent or accountable enough for the transition? No. An IRP is an accountability mechanism used to review and resolve a concern raised by the community over a policy decision made by ICANN. Any result from an IRP, whether positive or negative, demonstrates that the system of checks and balances built into the ICANN multistakeholder model works. The IRP has been enhanced to strengthen ICANN's commitment to employ open, transparent, bottom-up, multistakeholder processes after the transition. 11. Does ICANN have an operational relationship with the Chinese government? No. ICANN does not have any operational relationship with the Chinese Government. ICANN's engagement center in China is one of seven around the world. The presence of an ICANN engagement center or operational hub within a country does not imply any level of support for the nation's government or its policies.

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Agenda and Materials for Meeting #2
by Greg Shatan Sept. 8, 2016

Sept. 8, 2016

All, An agenda for Meeting #2 is attached along with an overview of our Schedule and our Work Plan (under development). Also attached are Word and PDF copies of the Google Doc as it now stands. I've had to put in some artificial page breaks to allow the comments to be fully visible; otherwise this is identical to what's now on the Google Doc. Apologies for not getting this to you all further in advance. Best regards, Greg & Vinay

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RES: Jurisdiction Subgroup Meeting #2 | 13:00 UTC | Thursday, 8 September
by Pedro Ivo Ferraz da Silva Sept. 8, 2016

Sept. 8, 2016

Dear WS2 - Jurisdiction colleagues, Please kindly accept my apologies for tomorrow's (today's) call. Regards, Pedro ________________________________ De: MSSI Secretariat [mssi-secretariat(a)icann.org] Enviado: terça-feira, 30 de agosto de 2016 14:10 Necessário(s): MSSI Secretariat; opomulero(a)akinbo.ng; alain.bidron(a)orange.com; icann(a)ferdeline.com; bwanner(a)uscib.org; mail(a)christopherwilkinson.eu; corinnecath(a)gmail.com; dmcauley(a)verisign.com; egmorris1(a)toast.net; Erich.Schweighofer(a)univie.ac.at; farzaneh.badii(a)gmail.com; ghislain.de-salins(a)finances.gouv.fr; gregshatanipc(a)gmail.com; gbarnett(a)mayerbrown.com; gurcharya(a)gmail.com; jeff.neuman(a)comlaude.com; jolufuye(a)kontemporary.net; jcurran(a)istaff.org; jordan(a)internetnz.net.nz; Jorge.Cancio(a)bakom.admin.ch; pandayjyoti(a)gmail.com; kavouss.arasteh(a)gmail.com; komaitis(a)isoc.org; mnuduma(a)yahoo.com; mshears(a)cdt.org; mike(a)rodenbaugh.com; milton(a)gatech.edu; nigel(a)channelisles.net; parminder(a)itforchange.net; policy(a)paulmcgrady.com; paul.rosenzweig(a)redbranchconsulting.com; Pedro Ivo Ferraz da Silva; phil(a)dotadvice.co.uk; psc(a)vlaw-dc.com; pmarano(a)mayerbrown.com; pranesh(a)cis-india.org; RPEREZGA(a)minetur.es; robin(a)ipjustice.org; snehashish(a)nixi.in; soekpe(a)gmail.com; sdelbianco(a)netchoice.org; met(a)msk.com; t.tropina(a)mpicc.de; tom(a)acig.com.au; vinay.kesari(a)gmail.com; brumark(a)telia.com; simon.jansson888(a)gmail.com; Finpet(a)erst.dk; andharr(a)amazon.com; Doaashendy(a)gmail.com; renusirothiya(a)gmail.com; jjs.global(a)gmail.com; mike.silber(a)board.icann.org; erika(a)erikamann.com; andreea.todoran(a)canada.ca; leonfelipe(a)sanchez.mx; mathieu.weill(a)afnic.fr; rickert(a)anwaelte.de; claudiokilla(a)gmail.com; tijani.benjemaa(a)topnet.tn; avri(a)acm.org; acallegari(a)modernizacion.gob.ar; Nigel Hickson; amrita(a)itforchange.net; Theresa Swinehart; Brenda Brewer; Hillary Jett; turcotte.bernard(a)gmail.com; Karen Mulberry; Yuko Green; Trang Nguyen; Samantha Eisner; Nathalie Vergnolle; Gisella Gruber; Nathalie Peregrine; ICANN Policy Calendar; Bart Boswinkel; Marika Konings; Laena Rahim; Andrea Beccalli; Ariel Liang; Julia Charvolen; Alain Durand; James Cole; Tarek Kamel; Berry Cobb Mail; Philadel Yeo; Glen de Saint Géry; David Conrad; Naela Sarras; Adiel Akplogan; Mandy Carver; Xavier J. Calvez; Teresa Elias; Elizabeth Andrews; Melissa King; Alice Jansen; Anne-Rachel Inne Assunto: Jurisdiction Subgroup Meeting #2 | 13:00 UTC | Thursday, 8 September Quando: quinta-feira, 8 de setembro de 2016 10:00-11:00. Onde: https://icann.adobeconnect.com/mssi-projects; tel://1-719-867-0497,*,,5263384535# Please join the Work Stream 2 - Jurisdiction Subgroup Meeting #2 on Thursday, 8 September @ 13:00 UTC. Additional time zone support here<http://www.timeanddate.com/worldclock/fixedtime.html?msg=Jurisdiction+Subgr…> CALL DETAILS: Link to Adobe Connect: https://icann.adobeconnect.com/mssi-projects Mobile: tel://1-719-867-0497,*,,5263384535#<UrlBlockedError.aspx> Upon logging into Adobe Connect, a pop up window will provide you the option to Dial Out to your Phone. Enter your Phone Number* (Remember to change the Country Code if needed). After joining the call, as a courtesy to others and the presenters, please MUTE your phone. This can be done by selecting *6 on your keypad. To UNMUTE select *6 again. If you are unable to log into Adobe Connect and can only join via phone: List of International Dial-In Numbers: View dial-in numbers<https://mtginfo.pgi.com/globalcallmanagement.asp?bwebid=9820041&cid=da6be6b…> Participant Passcode: 526 338 4535

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