January 2017 - Ws2-jurisdiction

Blog post on ICANN's jurisdiction
by farzaneh badii March 22, 2017

March 22, 2017

All, Here is a blog post on ICANN's jurisdiction and sanctions. http://www.internetgovernance.org/2017/01/13/icanns-jurisdiction-sanctions-… I have raised some of the issues before but the blog post is more consolidated. Hope it is useful for the work of this group. Best Farzaneh

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Hypothetical #1 for Review and Discussion by Subgroup
by Greg Shatan Feb. 9, 2017

Feb. 9, 2017

All, At the last meeting of the Jurisdiction Subgroup, we launched into discussion of the first hypothetical proposed in Section C of the "Influence of Jurisdiction" document. As a result of the discussion, suggestions were made of ways to revise the hypothetical. Those are currently marked in the Google doc. Discussion and analysis of the hypothetical was somewhat limited on the call, as many participants did not feel ready to discuss the particular hypothetical. As a result, it was decided to circulate this hypothetical and future hypotheticals (or actual occurrences) well in advance of the meetings. This allows time for consideration, preparation, discussion on the list, etc. The attached PowerPoint contains Hypothetical #1 (revised as discussed). I've also provided a format for our answers, along with some "strawman" answers (most of which already appear in some form in the Google doc). These strawman answers are intended to spur discussion, and should not be taken as final answers; nor should these answers serve to limit discussion. I will put the text into an MS Word doc and a Google Doc soon. Please begin (or continue) your consideration of this hypothetical by replying to this email. Thank you! Greg

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Notes, recordings and transcript for WS2 Jurisdiction Subgroup Meeting # 19 | 30 January
by MSSI Secretariat Feb. 1, 2017

Feb. 1, 2017

Hello all, The notes, recordings and transcripts for CCWG Accountability WS2 Jurisdiction Subgroup Meeting #19 – 30 January 2017 will be available here: https://community.icann.org/x/14PRAw A copy of the notes and action items may be found below. Thank you. With kind regards, Brenda Brewer MSSI Projects & Operations Assistant ICANN - Internet Corporation for Assigned Names and Numbers Action Items: · · Greg Shatan to redraft Summary Form per comments on the list · Volunteers to analyze cases using forms should pick their cases (sign up sheet) and complete their analysis per the Form for 14 February. · MW has completed his 2 cases. · Re draft question from DM on possibility of ICANN being sued in other jurisdictions – sub-group should review and post comment if any this week. Notes (including relevant portions of chat): 1. Welcome Greg Shatan: (15 participants at start of call). No changes to SOIs. 2. Questionnaire a. Time Period for Responses to the Questionnaire Greg Shatan: Great deal of discussion. Some requesting 30 days after the ICANN58 meeting. Would suggest closing 7 April with no extensions possible - as a middle ground. Any comments? Bernard Turcotte: Reminder that KA has requested 30 days after ICANN 58. Greg Shatan: yes 7 April would be a compromise. Avri Doria: sure, give all the time people need. David McAuley (RySG): I ilke the idea of not extending and looking at replies as they come in John Laprise: the longer the better to allow participation and knowledge of the issue. Greg Shatan: Good points, we have a lot of work to do in the meantime so no reason not to extend. Also, we can ask people to respond early and the group can consider these as they come in. As such would suggest closing 17 April which is 30 days after ICANN 58 closes. Mathieu Weill: A quick work plan note: Mid Apr is 2 months away from Johannesburg. Might be difficult to be in a position to have a 1st reading by then David McAuley (RySG): Good point Mathieu Mathieu Weill: Not that it is a deadline, but it's important to manage expectations on timeline Greg Shatan:(decision) No objections. So, the questionnaire will be taking responses until 17 April which is 30 days after ICANN58 and there will be no extensions. Avri Doria: if we work with the replies coming in, then finishing up after the 17th might be quick. and we can make a plea for early responses because of the schedule. 3. Hypothetical #1 (taken from “Influence of ICANN’s Existing Jurisdiction” document, Section C ) Greg Shatan: This is what I think is the heart of our work. (going through the document). David McAuley: A difficulties I am having is understanding WHAT WENT WRONG. Otherwise Avri Doria: does the nationality of the plaintiff feed in any complexity? Philip Corwin: On point 4, if the ruling is against ICANN and ICANN belives the ruling to be erroneous, it has a right of appeal. Mathieu Weill: Who is judging on correctly or wrongly decided? Avri Doria: it is a possible good thing to mark all the points in the hypotheticals where some action by ICANN and its Board & EC Philip Corwin: IMH< the key consideration is that ICANN is HQ'd in a jurisdiction with a clear commitment to the rule of law, and that any party with standing can initiate litigation regardless of their home jurisdiction. Avri Doria: Philip sometimes easier said than done Mathieu Weill: We should check how many litigations in court were initiated by parties outside the US (to check how Phil's requirement translates into practice) Avri Doria: As long as someone from the 7 countries does not need to appear in court, it might be ok. Philip Corwin: @Avri--challenges of bringing litigation, especially costs, are hardly unique to US Wale Bakare: Would the decision different in either case? Avri Doria: i don't know, but i understand some view a physical presence as sometimes preferable in terms of making an appeal. Wale Bakare: In physical's emotions can get involved and perhaps could impact on the decision Avri Doria: often a good thing Philip Corwin: regardless of the governing law, the court's ruling might be pro-ICANN from one judge and anti-ICANN from another. There is no way to guarantee 100% consistency in any judicial forum. That's why there are rights of appeal. Avri Doria: they are part of the equation Mathieu Weill: Having ICANN accountable to other governing laws might actually bring additional accountability, for instance related to privacy Mathieu Weill: This is a great list of factors to compare jurisdiction if need be David McAuley: It might help if we segment questions in 2 ways - Corporate Governance questions and Everything else. Greg Shatan: This could be a template for looking at things. 4. Small Group Review of ICANN’s Past and Current Litigation a. Litigations: https://www.icann.org/resources/pages/governance/litigation-en b. Draft Summary Form: https://docs.google.com/document/d/1efkQOvSwW-2m1T_u6anFMVUeiHoO6P4PR3-0mWl… Greg Shatan: Kudos to MW for being the first to complete his. David McAuley (RySG): Thanks for that Mathieu - I need to get active on my reviews Philip Corwin: Facts are often in dispute in litigation, with the court being the ultimate finder of facts. It finds the facts, and then it applies the relevant law. Mathieu Weill: GS will wait for your update to the forms. Greg Shatan: Will do. c. Sign-Up Sheet: https://docs.google.com/document/d/1oo9oDJuuxFz1UUNaBfHeor7HPhJ5XcRHFTq3hjR… 5 “Influence of ICANN’s Existing Jurisdiction” document, Section C a.https://docs.google.com/document/d/1_uxN8A5J3iaofnGlr5gYoFVKudgg_DuwDgIuy… Greg Shatan: We need to look to other hypotheticals that go to this question. KA has suggested a list of questions earlier in the year. 6. AOB Greg Shatan: DM has drafted question for ICANN Legal. Will consider this week. 7. Adjourn Decisions: · · Time period for responding to questionnaire will be until 17 April with no extensions.

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Case summary - 2 drafts for your review
by Mathieu Weill Feb. 1, 2017

Feb. 1, 2017

Dear Colleagues, During a long flight today, I tried to apply our case summary form to two of the past ICANN litigations. Both forms are attached for : - The State of Arizona vs NTIA case in Sep 2016 (I guess many of us are familiar with this case) - The 2004-2006 Verisign vs ICANN case Id appreciate feedbacks from the group regarding whether the detail level is appropriate, and whether the information is relevant to the various questions. Thank you for your understanding if there are any confusions due to my lack of legal skills. Best, -- ***************************** Mathieu WEILL AFNIC - directeur général Tél: +33 1 39 30 83 06 <mailto:mathieu.weill@afnic.fr> mathieu.weill(a)afnic.fr Twitter : @mathieuweill *****************************

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Annex 12 Bullet Points
by Greg Shatan Jan. 31, 2017

Jan. 31, 2017

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Draft (long) question on notions of presence and jurisdiction
by McAuley, David Jan. 31, 2017

Jan. 31, 2017

Greg asked if I would put together a possible question to legal counsel regarding a point I made during our last call about the likelihood that notions of jurisdiction for litigation and the related importance of physical presence may be changing in the digital age. I have attempted to do that below, in language that became longer than expected in trying to add good context. I believe that this is a matter that we may look at as a subgroup and so offer this draft for our consideration - for tweaking/changing/shortening as we see fit - and deciding if we wish to pose such a query at all. I ask some internal questions to us in red italics in parentheses. Best regards, David David McAuley International Policy Manager Verisign Inc. 703-948-4154 DRAFT QUERY: The Work Stream 2 subgroup on jurisdiction requests legal advice as described in this note. We have been working on the premise that ICANN (incorporated as a nonprofit company in California) is subject to litigation in the countries where it has these presences: * Hub offices: o USA o Turkey o Singapore * Engagement offices: o China o Belgium o Switzerland o Uruguay o Kenya o Republic of Korea We believe it would be useful for us to know whether jurisdiction against ICANN in (civil, criminal, do we care) litigation could be maintained elsewhere. There are generally three aspects to our interest. First, there are countries other than those listed above where ICANN employees reside and "work from home" for the most part - being paid by ICANN in the employee's local currency. (Is this correct? Also, is ICANN 'registered' anywhere else than where it has an office?) Second are countries where ICANN has had no physical presence like those above but has held one or more formal ICANN meetings (like ICANN 57 in Hyderabad, India) which are significant to ICANN's multistakeholder operations. And then there are countries where ICANN has had no physical presence at all. We note that in its Articles of Incorporation<https://www.icann.org/resources/pages/governance/articles-en> ICANN states, among other things, that it shall promote the global public interest in the operational stability of the Internet and that it will operate for the benefit of the Internet community as a whole, carrying out its activities in conformity with relevant principles of international law and international conventions and applicable local law. And we note that in its Bylaws<https://www.icann.org/resources/pages/governance/bylaws-en> ICANN commits, among other things, to operate for the benefit of the Internet community as a whole, carrying out its activities in conformity with relevant principles of international law and international conventions and applicable local law. We generally understand that in many places jurisdiction for litigation is premised on physical presence in some manner. But we wonder whether in the digital age the concept of "targeting" can be used as a basis for litigation jurisdiction. In other words we wonder whether a party, based where ICANN has no office, could successfully maintain a lawsuit against ICANN in a local court based on the argument that ICANN targeted them improperly for some action. We are looking for general advice rather than a country-by-country analysis, being interested in trends and reasonable probability and not legal certainty at this point (this relates to cost/effort - how do we wish to control this).

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Agenda and Materials for Today's Meeting @ 19:00
by Greg Shatan Jan. 30, 2017

Jan. 30, 2017

All, My apologies for not sending all of these sooner. Here is the agenda for today. I am re-sending the Powerpoint/PDF of Hypothetical #1 (circulated 27 January), along with a new Word/PDF version of the same hypothetical (the text is identical). As previously indicated, we will discuss this on today's call. I look forward to today's call. Greg

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Re: [Ws2-jurisdiction] [CCWG-ACCT] Scope of mandate on HR FOI
by Greg Shatan Jan. 27, 2017

Jan. 27, 2017

I tend to agree for the most part with Tatiana. We have been asked to "confirm that [the Human Rights subgroup] it has completed developing the Human Rights FOI per Annex 12." This can't be a rubber stamp. We need to satisfy ourselves that this FoI really reflects *how* and *that *we have considered each of the following: · Consider which specific Human Rights conventions or other instruments, if any, should be used by ICANN in interpreting and implementing the Human Rights Bylaw. · Consider the policies and frameworks, if any, that ICANN needs to develop or enhance in order to fulfill its commitment to respect Human Rights. · Consistent with ICANN’s existing processes and protocols, consider how these new frameworks should be discussed and drafted to ensure broad multistakeholder involvement in the process. · Consider what effect, if any, this Bylaw would have on ICANN’s consideration of advice given by the Governmental Advisory Committee (GAC). · Consider how, if at all, this Bylaw will affect how ICANN’s operations are carried out. · Consider how the interpretation and implementation of this Bylaw will interact with existing and future ICANN policies and procedures. Do we want "consider" to be synonymous with "duly take into account" which can be satisfied by reviewing and considering an element (say, a public comment) and then deciding that nothing will be as a result of that review? At the very least, we need to make sure we did the "review and consider" part. If no changes need to be made in the FoI on a given point, then we should be able to say why we came to that conclusion. *We need to have a substantial discussion to determine whether the FoI reflects that we have considered each of these elements, and reflects the outcome of that consideration.* *Until we do this, I strongly question whether the Framework of Interpretation document is ready for Public Comment.* If we decided that separate documents/annexes/etc. were needed, then perhaps this could be put out for comment. But I question that as well. Those really are parts of the FoI package, and would also need to be put out for Public Comment before the Bylaw graduates from "dormant" status. Wouldn't it be better to have the whole package out there at once? As an alternative, we could put the FoI out for a second set of comments while putting the added pieces out for first comments (and possibly only comments). Also, the determination of the Co-Chairs was that we follow Annex 12, rather than Annex 6. Annex 12 calls for a single integrated document reflecting all considerations. Annex 6 calls for follow-on documents. Since we are going with Annex 12 any additional material needed to reflect our "consideration" *must be in the FoI itself.* One last point. I think that the open-ended invitation to " develop suggestions for ICANN implementing the HR FOI " goes beyond our mandate. The only implementation advice we should be giving would be as a result of "considering" the 6 bullet points above. One could say there is an express or implied element of implementation (or more accuerately "implementation guidance," which is not quite the same thing) in each of these bullet points. A textual analysis of the Bylaw, no matter how excellent it is, does not satisfy any of these points. And going beyond these points into an unfettered discussion of suggestions for Implementation would be going too far. So, I'm sorry to say, we're not there yet. Greg On Fri, Jan 27, 2017 at 1:15 PM, Seun Ojedeji <seun.ojedeji(a)gmail.com> wrote: > Thanks, do find inline: > > On Jan 26, 2017 2:11 PM, "León Felipe Sánchez Ambía" < > leonfelipe(a)sanchez.mx> wrote: > > Dear all, > > > Considering these and other factors the Co-Chairs would recommend that the > Human Rights sub-group confirm that it has completed developing the Human > Rights FOI per Annex 12 of the CCWG-Accountability WS1 Recommendations. > > > SO: Exact question that I have been asking as well, which also implies > that it's not helpful to put the draft FoI to public comment without > getting clear response on the point above! > > > > Should the sub-group feel that it should develop suggestions for ICANN > implementing the HR FOI based on its work to date the Co-Chairs would be > amenable to this and would invite the HR sub-group to submit any such > suggestions to the plenary for consideration by early May 2017, if there > was no objection from the plenary. > > > SO: May I ask the Co-Chairs to clarify what part of the WS1 report > mandates the HR subgroup to carry out the task above or is this WS2 > assigning a new task to the subgroup?. Like I have said, it seem to me that > all HR needed to produce was the FoI and they just need to confirm if the > draft they sent was done is consideration of Annex 12 period! > > Regards > > > Best regards, > > > Thomas, Mathieu and León > > > _______________________________________________ > 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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PLEASE DISREGARD: Re: [CCWG-ACCT] Scope of mandate on HR FOI
by Greg Shatan Jan. 27, 2017

Jan. 27, 2017

Jurisdiction Subgroup: Please disregard the email just sent to our list with the above subject. That was not intended for the group. Thank you for understanding. Greg

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Notes, recordings and transcript for WS2 Jurisdiction Subgroup Meeting # 18 | 24 January
by MSSI Secretariat Jan. 25, 2017

Jan. 25, 2017

Hello all, The notes, recordings and transcripts for CCWG Accountability WS2 Jurisdiction Subgroup Meeting #18 – 24 January 2017 will be available here: https://community.icann.org/x/4aXDAw A copy of the notes and action items may be found below. Thank you. With kind regards, Brenda Brewer MSSI Projects & Operations Assistant ICANN - Internet Corporation for Assigned Names and Numbers Action Items · Greg Shatan to redraft Summary Form per comments today and distribute to list. · Volunteers to analyze cases using forms should pick their cases (sign up sheet) and complete their analysis per the Form for 14 February. · David McAuley will draft a question this for external counsel regarding the possibility of ICANN being sued in other jurisdiction in the digital age. This will be distributed on the list for comments. · Greg Shatan will prepare questions from the “Influence of ICANN’s Existing Jurisdiction” document for the sub-group’s next meeting and distribute on the list. Notes (including relevant portions of chat): 9 Participants at start of call 1. Welcome Greg Shatan: Apologies from Kavouss Arasteh, Jorge Cancio. Becky Burr audio only. Updates to SOIs? (none). 2. Questionnaire a. Publishing and Announcing the Questionnaire Greg Shatan: Has been discussing on list. Suggest announce of ICANN Public comments page and then point to a URL. It can then be published or referenced by any of us. No objections. Will proceed as such if ICANN has no objections. b. Time Period for Responses to the Questionnaire Greg Shatan: we have a number of options to consider. Mathieu Weill: If we publish with translation between 8 to 10 February the standard 42 day period would end after ICANN 58. David McAuley: Support MW. We should be preparing to analyze the questionnaire responses as responses come in - may be efficient to have a team for this. c. Translation Greg Shatan: Translation in the standard UN languages is built into the plan and will publish all at the same time. Any comments David McAuley: Are we going beyond the UN 6? Greg Shatan: No decision yet regarding Farsi. David McAuley: FB suggestion is noble but would urge caution in going beyond the UN 6. Would recommend we stick with the standard UN 6. Cheryl Langdon-Orr: DM points well taken. would like to point out that are issues with non-professional translation. ALAC uses these services and often goes beyond the UN6 into Portuguese often. Reverse translation issue will still be there. Matthew shears: it is always wise to use accepted languages Mathieu Weill 2: accepted practice in general I would add David McAuley (RySG): Good point CLO about the large number of Asian Pacific languages - I for one speak a little Tagalog and my wife, from Manila, speaks it fluently - a beautiful language. Avri Doria: Unless there is a specific reason to go beyond the UN 6 do not understand why we would expand - and any translation should be professional. If someone wants to translate informally to distribute it to their contacts this is fine but responses have to be in the UN 6. Greg Shatan: temp check Limit to UN6 - (6+ and none against). Going beyond UN6 and have a specific suggestion? ( none, 1 gainst). Will do the standard UN languages. Farzaneh Badii: oops I got here late. But suggesting Farsi was not because it was an Asian language. Iranians are affected by ICANN jusridcition more than those that speak Telagu or other things Farzaneh Badii: another thing added to my tasks Vidushi Marda: Farzi - I don't think that's fair to say, it has atleast 85 million native speakers. Farzaneh Badii: Vidushi we have cases should be discussed Farzaneh Badii: it's not about how many speak it Vidushi Marda: agreed - but this is forward looking and there are many people interested in the work of this group - who are :) Farzaneh Badii: your argument resulted in an a decision that just adds to my workload. and not many Iranians are going to respond to these in english Vidushi Marda: agreed, I'm not saying it isn't important at all Farzaneh Badii: and I don't know how accurate informal trnaslation is going to be,. I am not going to give up on this and will translate but this was not a decision to make by arguing just that oh there are so many other languages Farzaneh Badii: I have given specific examples how Iranians are affected Farzaneh Badii: did anyone do that who speaks some other language? anyhow. doesnt matter spendiing life on ICANN might be good for me 3. Small Group Review of ICANN’s Past and Current Litigation a. Litigations: https://www.icann.org/resources/pages/governance/litigation-en Greg Shatan: Review of the 35 or so cases. Have prepare a suggestion for a draft summary form and circulated for comments. b. Draft Summary Form: https://docs.google.com/document/d/1efkQOvSwW-2m1T_u6anFMVUeiHoO6P4PR3-0mWl… Greg Shatan: Review of Summary report draft form. David McAuley (RySG): maybe make it a binary question - was jurisdiction contested in any manner Matthew shears: perhaps the justification for considering it relevant to our work should be the last line of the summary Mathieu Weill 2: Our "influence" doc has 3 categories we could map to cases : Influence on operation of ICANN policies, of ICANN acct mechanisms, on Disputes involving ICANN - We could tag according to this. Farzaneh Badii: are we going to discuss arbitration cases to ( if there are any?) Greg Shatan: Stick with the list which includes the 1 arbitration case. Action Item: GS to edit the draft summary form per discussions. David McAuley (RySG): Greg - do we have a time scale for this effort? Greg Shatan: 35 cases and 9 volounteers = about 4 cases per person - 3 weeks should be enough (Action Item for Analysis team members: reports would be due 14 February). David McAuley (RySG): ok c. Sign-Up Sheet: https://docs.google.com/document/d/1oo9oDJuuxFz1UUNaBfHeor7HPhJ5XcRHFTq3hjR… Greg Shatan: - 4. “Influence of ICANN’s Existing Jurisdiction” document, Section C https://docs.google.com/document/d/1_uxN8A5J3iaofnGlr5gYoFVKudgg_DuwDgIuyIC… David McAuley: Is this just about the US or are we looking at what would happen elsewhere? Greg Shatan: Good questions, will have to refine our working method as to how input in. David McAuley (RySG): I think that is a good comment on my comment Greg – this asks us to wonder about the future when we have past performance to judge by – why not go by that? Mathieu Weill: Use Plaintiff language as suggested by GS. will also help us classify the cases. David McAuley (RySG): Good point Mathieu. You state is that ICANN can be sued in other jurisdictions. It may be worth asking our external legal counsel about that in the digital age. Greg Shatan: DM good question. Action Item: DM will propose on the list. David McAuley (RySG): ok, will do David McAuley (RySG): a bit later in the week Greg Shatan: Any other comments? (none). Continue discussion of document. Keeping parties accountable is good - so allowing people to sue allows for this. David McAuley (RySG): I think Greg makes a fair point about capacity to be sued - a basic thing that is easy to perhaps overlook at times. Greg Shatan: This is an important part of our work and hope that we can have better discussions on this. David McAuley: I have not been back to this document recently. this is important and we need to get back to it. suggest we note it in the agenda. Greg Shatan: I would take it further and extract the questions and distribute as a specific assignment to help people focus. David McAuley (RySG): good idea - and ask us to generate questions about it too David McAuley (RySG): this may take several weeks 5. AOB (none) 6. Adjourn Decisions: · Questionnaire will be announced on ICANN Public Comment page which will have a web link to it. · Questionnaire will only be translated in the official UN languages by ICANN Language services. · Questionnaire will be published in all languages simultaneously. · Time period for responding to questionnaire should be standard 42 days (it is expected that the translations will be available between the 8th and 10th of February which would put the closing 24 March) extensions for those requesting this could be possible. · Review of ICANN’s Past and Current Litigation will only focus on the 35 cases listed on the web site and not include IRP etc. Action Items: · Greg Shatan to redraft Summary Form per comments today and distribute to list. · Volunteers to analyze cases using forms should pick their cases (sign up sheet) and complete their analysis per the Form for 14 February. · David McAuley will draft a question this for external counsel regarding the possibility of ICANN being sued in other jurisdiction in the digital age. This will be distributed on the list for comments. · Greg Shatan will prepare questions from the “Influence of ICANN’s Existing Jurisdiction” document for the sub-group’s next meeting and distribute on the list.

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