March 2017 - Ws2-jurisdiction

Notes, recordings and transcript for WS2 Jurisdiction Subgroup Meeting # 24 | 28 March 2017
by MSSI Secretariat April 3, 2017

April 3, 2017

Hello all, The notes, recordings and transcripts for CCWG Accountability WS2 Jurisdiction Subgroup Meeting #24 – 28 March 2017 will be available here: https://community.icann.org/x/g67RAw A copy of the action items and notes may be found below. With kind regards, Brenda Brewer, Projects & Operations Assistant Multistakeholder Strategy & Strategic Initiatives (MSSI) Internet Corporation for Assigned Names and Numbers [cid:image001.png@01D2A969.FB5CAA20] Action Items: · Staff-GS – Add Christopher Wilkinson to Questionnaire Review/Evaluation Team · Staff to create email address for Questionnaire Review/Evaluation Team · Staff-GS To send doodle poll to arrange for a meeting of the Questionnaire Review/Evaluation Team Notes (includes relevant text from chat): 13 Participants at start of call 1. Welcome 2. Review of Agenda Greg Shatan - (no objections) 3. Administration a) Changes to SOIs (none) b) Questions to ICANN Legal – Status (awaiting response) 4. Questionnaire Update a) Status of current responses – no new responses b) Questionnaire Review/Evaluation Team i) Responsibilities (1) Updating the Subgroup on new responses and their status at each meeting (2) Proposing an evaluation framework for responses (a) Responses received will help guide creation of evaluation framework Christopher Wilkinson - I responded but my name does not seem to have been accepted. Greg Shatan - will add. (b) To be approved by the Subgroup ii) Mail list to be created iii) Meeting to be scheduled – Doodle poll to follow 5. Review of ICANN’s Past and Current Litigation a) Review of Sign-up sheet (document) Greg Shatan - (no changes) b) Review of Summary Sheet (document) c) Review of Summaries i) Verisign, Inc. v. ICANN V2 – MW Mathieu Weill - (presentation of summary sheet). Did not feel comfortable filling in the "choice of law/gov. law" field. Becky Burr - ICANN used to put in a choice of law claue in its contracts which it does not do anymore. ii) State of AZ vs NTIA V2 - MW Mathieu Weill - (presentation of summary sheet). Did not feel comfortable filling in the "choice of law/gov. law" field. Greg Shatan - did the court rule on the jurisdiction argument (MW - no mention of it). Any questions? (none). iii) Ben Haim v. Iran – MW Mathieu Weill - (presentation of summary sheet). Did not feel comfortable filling in the "choice of law/gov. law" field. Becky Burr: there was a long discussion in the cases regarding which attachment law (state) applied Becky Burr: DC or California Mathieu Weill: I'll check the case and extract the relevant parts Becky Burr: not WOULD have, but potentially could have Becky Burr: because the plaintiffs sought the attachment in DC David McAuley (RySG): just getting wind of this discussion - in the case on screen I think coutrt applied DC law which is a tad unusual on attachment Becky Burr: so the plaintiff controlled here Becky Burr: yes, David, you and I are on the same wavelength Greg Shatan - should we add a field to the form about alternate jurisdictions. Mathieu Weill - Do not think we should theorize about this - we just do our analysis and then look at statistics they yield. Becky Burr: correct Mattieu David McAuley (RySG): good point @Mathieu Greg Shatan - Agree we should not do studies beyond what is provided in the materials. 6. AOB Greg Shatan - (none) 7. Adjourn Greg Shatan - Adjourned. Decisions (none)

2 1

Agenda for Jurisdiction Subgroup Meeting #24
by Greg Shatan March 29, 2017

March 29, 2017

All: Here is the agenda for the upcoming Jurisdiction Subgroup Meeting at 19:00 UTC today. Greg *Greg Shatan *C: 917-816-6428 S: gsshatan Phone-to-Skype: 646-845-9428 gregshatanipc(a)gmail.com

4 3

Re: [Ws2-jurisdiction] CCWG-Accountability-WS2-Jurisdiction-Meeting-20170322 REVISED Agenda
by Greg Shatan March 28, 2017

March 28, 2017

All, Attached is a revised agenda (also below) and supporting documents for the upcoming call. *CCWG-Accountability Work Stream 2* *Jurisdiction Subgroup, Meeting #23* *March 22, 2017, 13:00 UTC* *AGENDA* 1 Welcome 2 Review of Agenda 3 Administration (5 minutes) 3.1 Questions to ICANN Legal – Status 3.2 Hypotheticals document and “Influence of ICANN’s Existing Jurisdiction” document – Clarify that active work is suspended until ICANN Legal responds to the questions and the litigation review is complete, but the documents are still open for contributions. 4 Review of ICANN’s Past and Current Litigation (30 minutes) 4.1 Review of Sign-up sheet (document) 4.2 Review of Summaries 4.2.1 Verisign, Inc. v. ICANN V2 – MW (document) 4.2.2 State of Arizona vs NTIA V2 - MW (document) 4.2.3 Ben Haim v. Iran…. – MW (document) 4.2.4 DCA v. ICANN - DM (document) 4.2.5 DCA V. ICANN – Appellate Court - DM (document) 5 Questionnaire Update (10 minutes) 5.1 Review and Evaluation Team - Update 5.1.1 Team is responsible for updating the subgroup on new responses and their status at each meeting, as well as elaborating an evaluation framework for responses, for approval by the sub-group, based on the responses received. 5.1.2 Composition of the review team 5.1.3 Review Team – Next steps. 5.2 Status of current responses (document) 6 AOB 7 Adjourn Greg *Greg Shatan *C: 917-816-6428 S: gsshatan Phone-to-Skype: 646-845-9428 gregshatanipc(a)gmail.com On Tue, Mar 21, 2017 at 5:01 PM, Greg Shatan <gregshatanipc(a)gmail.com> wrote: > All, > > The next meeting of the Jurisdiction subgroup will be 22 March 13:00 UTC. > Please find attached the agenda for the meeting. Related materials may be > found in Bernie's email of February 28. Please read the case summaries and > be prepared to discuss them at the meeting. Updated tracking sheets will > be distributed later this evening, EDT. > > Best regards, > > Greg > > > *Greg Shatan *C: 917-816-6428 <(917)%20816-6428> > S: gsshatan > Phone-to-Skype: 646-845-9428 <(646)%20845-9428> > gregshatanipc(a)gmail.com > >

1 1

Notes, recordings and transcript for WS2 Jurisdiction Subgroup Meeting # 23 | 22 March 2017
by MSSI Secretariat March 23, 2017

March 23, 2017

Hello all, The notes, recordings and transcripts for CCWG Accountability WS2 Jurisdiction Subgroup Meeting #23 – 22 March 2017 will be available here: https://community.icann.org/x/O6vRAw A copy of the action items and notes may be found below. With kind regards, Brenda Brewer, Projects & Operations Assistant Multistakeholder Strategy & Strategic Initiatives (MSSI) Internet Corporation for Assigned Names and Numbers [cid:image001.png@01D2A3BB.DE89CB70] Action Items: * GS – If no news on questions to ICANN Legal by Monday 27 March GS will follow up with them. * GS – Post link to tutorials on US court system. * GS – Initiate Review and Evaluation team for questionnaire. Notes (Including relevant parts of chat): 16 Participants at start of call 1. Welcome Greg Shatan - Changes to SOIs? (none). Audio Only? (none) 2. Review of Agenda Greg Shatan - No objections 3. Administration 3.1 Questions to ICANN Legal – Status Greg Shatan - ICANN Legal has acknowledged reception but has not provided the requested estimate yet (understandable vs ICANN58). If no news by Monday next week will follow up with them. Action item – GS – If no news on questions to ICANN Legal by Monday 27 March GS will follow up with them. 3.2 Hypotheticals document and “Influence of ICANN’s Existing Jurisdiction” document – Clarify that active work is suspended until ICANN Legal responds to the questions and the litigation review is complete, but the documents are still open for contributions. Greg Shatan - Restating this for any that were not on the last call. 4. Review of ICANN’s Past and Current Litigation (30 minutes) 4.1 Review of Sign-up sheet (document) Greg Shatan - Some new people have signed up. David McAuley: I will do two more cases - probably next week 4.2 Review of Summaries 4.2.1 Verisign, Inc. v. ICANN V2 – MW (document) Greg Shatan - skip given MW is not present today. 4.2.2 State of Arizona vs NTIA V2 - MW (document) Greg Shatan - skip given MW is not present today. 4.2.3 Ben Haim v. Iran…. – MW (document) Greg Shatan - skip given MW is not present today. 4.2.4 DCA v. ICANN - DM (document) David McAuley - (Presentation of summary document). Jurisdiction not a significant part of this case. 4.2.5 DCA V. ICANN – Appellate Court - DM (document) David McAuley - (Presentation of summary document). 9th circuit for this case. Jurisdiction probably not a major consideration in this case. Important to note that an IRP was active in the middle of these cases. avri doria: diversity jurisdiction: how does that work? i guess i can go look it up. Greg Shatan: I'll ask David to expand a bit on the diversity issue. avri doria: ie. how do multiple jurisdiction affect things in Federal cases? is that a significant thing in itself? Greg Shatan - DM could you explain the Diversity Jurisdiction court issue. David McAuley - by statute federal courts can hear state cases where the parties are different jurisdiction. The entry of ZACR ended perfect diversity Greg Shatan: Avri, the "diverse" citizenship of the parties is the basis of diversity jurisdiction. avri doria: is the litigant choice limited to US courts? avri doria: what kind of claims? being subject to a different set of laws? if i am the only one confused by the implications and what is allowed as a claim, i will go study up. avri doria: i think the degree to which there is flexibility on the claims an laws used may be a signification juridical factor in our work. thanks for the education. avri doria: Could they have gone, e.g., a court in Kenya to litigate? Kavouss Arasteh - All these courts in the US make this confusing for some of us. Would be appreciated if we could get a description how the system works. Second no such presentation for other cases. Have looked at some of these cases it seems that have been overly simplified. Greg Shatan - re KA questions we will present a summary for each case. As to over simplification we are focusing on jurisdiction. As to the first question a simple version there are 2 parallel systems Federal and State but both are ruled by the same laws. The Federal system has 3 levels the highest one being the US supreme court. Kavouss Arasteh: Greg, thanks,may you please provide a tutorial description of the legal jurisdiction process in USA David McAuley - re diversity jurisdiction for federal courts - in many cases they still apply state law. Greg Shatan - re AD question vs bringing case in Kenya - maybe -depends on many considerations. David McAuley: now that ICANN has an office in Kenya I think the answer would be yes - as of the date that office opened Becky Burr: agree with David, but isn't there an argument that the harm occurs in Kenya? David McAuley: fair point Becky David McAuley: At bottom, in the DCA cases I don't think jurisdiction is a paramount issue David McAuley: in fact the case is still ongoing in Cal. state court Kavouss Arasteh: Still the hierarchy of state court, Appeal court ,which usually at the same state , and when federal courts are called for and when supreme court would be involved are not clear Jorge Cancio (GAC Switzerland): perhaps we might need to look into forum shopping strategies employed regularly - in order to understand what jurisdictions are preferred by whom - depending on what is what your objectives are (an injunction in a specific territory; damages; blocking a decision... etc) Kavouss Arasteh: The relation between three layers in State courts, on the one hand, and federal court on the other hand and finally the role of supreme courts need to be further elaborated and documented Greg Shatan - re: KA will post some information on this. Action Item – GS – Post link to tutorials on US court system. avri doria: what i think is important to this group is the flexibility allowed in the current jurisdiction. be interesting to see if this is leveraged in any of the other cases. Kavouss Arasteh - why two entries for DCA. David McAuley 2: Greg gave right reason - but it was ICANN's listing of litigation is where the split occurred. 5. Questionnaire Update 5.1 Review and Evaluation Team - Update Greg Shatan - ICANN 58 overtook the evaluation team and we will have to get this started. Action Item – GS – Initiate Review and Evaluation team for questionnaire. 5.1.1 Team is responsible for updating the subgroup on new responses and their status at each meeting, as well as elaborating an evaluation framework for responses, for approval by the sub-group, based on the responses received. 5.1.2 Composition of the review team Greg Shatan - still looking volunteers if you have not done so yet. Erich Schweighofer: I will help in the questionnaire review. Tatiana Tropina: Greg, I already volunteered to help with the questionnaire review, can confirm again that I will help 5.1.3 Review Team – Next steps. 5.2 Status of current responses Greg Shatan - no new responses since February 22nd - this is not atypical. any questions? (none). Remind everyone should publicize it to their lists. 6. AOB (none). 7. Adjourn Decisions (none) Action Items: · GS – If no news on questions to ICANN Legal by Monday 27 March GS will follow up with them. · GS – Post link to tutorials on US court system. · GS – Initiate Review and Evaluation team for questionnaire.

1 0

Juridiction layers
by Kavouss Arasteh March 23, 2017

March 23, 2017

Dear Greg Good evening, May you kindly provide some information on Jurisdiction layers a) in California and b) other states and C) federal & Supreme Cours This info. is required to better understand the previous litigations. Regards Kavous

1 0

[Ws2-jurisdiction] CCWG-Accountability-WS2-Jurisdiction-QuestionnaireEvaluationGroup
by Bernard Turcotte March 22, 2017

March 22, 2017

All, Greg has reviewed the list of those wishing to participate in the Questionnaire Evaluation sub-sub-group of the Jurisdiction sub-group and it now stands as: - Mathieu Weill - Parminder - David McAuley - Kavouss Arasteh - Vidushi Marda - Tatiana Tropina - Erich Schweighofer Should anyone else be interested in participating please respond to the list in the next 24 hours to allow staff to finalize the list and proceed with the creation of an archived mailing list for this group. Once the list is finalized Greg will post a welcome email to kick off the group's activities prior to the next meeting of the Jurisdiction sub-group. Please advise if you have any questions. Bernard Turcotte ICANN Staff Support to the CCWG-Accountability-WS2

2 1

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

15 74

[Ws2-jurisdiction] CCWG-Accountability-WS2-Jurisdiction-Meeting-20170322 Agenda
by Greg Shatan March 21, 2017

March 21, 2017

All, The next meeting of the Jurisdiction subgroup will be 22 March 13:00 UTC. Please find attached the agenda for the meeting. Related materials may be found in Bernie's email of February 28. Please read the case summaries and be prepared to discuss them at the meeting. Updated tracking sheets will be distributed later this evening, EDT. Best regards, Greg *Greg Shatan *C: 917-816-6428 S: gsshatan Phone-to-Skype: 646-845-9428 gregshatanipc(a)gmail.com

1 0

More Volunteers Needed: Litigation Review Team, Questionnaire Response Review Team
by Greg Shatan March 9, 2017

March 9, 2017

All, On this week's call, we discussed two small teams to be populated by volunteers from the Subgroup. We have some volunteers, but we need more. 1. *Litigation Review Team*. Mathieu Weill, David McAuley, myself, Avri Doria and Vidushi Marda are in this team, reviewing and summarizing the litigations that ICANN has been involved in. We need a few more volunteers. Please respond if you can review -- even one review will be helpful. 2. *Questionnaire Response Review Team*. We need a team to (a) develop a proposal for how the team will review and evaluate responses to the questionnaire (for the approval of the Subgroup), (b) carry out the review and evaluation of the responses (both individually and in the aggregate, to the extent contemplated by the proposal approved by the Subgroup, and (c) recommend how the responses be applied to our work and documents. Please respond if you can join this team (and if you are interested in coordinating it). Initial volunteers are Mathieu, David, Vidushi, Kavouss, Parminder and myself. If you can join this group, please respond. While either group can be joined at any time (but sooner than later), those joining the Questionnaire team now/soon will be there to participate in the development of the proposal described in 2(a) above. I want to thank Mathieu, David and Vidushi for doing "double duty" by joining both teams. However, given the number of participants in this Subgroup, that really should not be necessary. Please consider volunteering for one of these groups if you haven't done so already. Thank you! Greg -- *Greg Shatan *C: 917-816-6428 S: gsshatan Phone-to-Skype: 646-845-9428 gregshatanipc(a)gmail.com

6 5

Re: [Ws2-jurisdiction] Questions based on Parminder's statements in the last meeting about GAC participation
by McAuley, David March 9, 2017

March 9, 2017

I agree with Paul. The only thing to add concerns the fourth point. I think Paul is correct on the fourth point, including where he say that so long as ICANN has any interests/assets/effects in a country, it cannot effectively avoid that jurisdiction. In addition, many countries have treaties/arrangements to enforce final judgments from other countries – these may be bilateral, regional, or even globally multilateral treaties. So it may turn out that ICANN cannot avoid a judgment even if it fled the realm, taking all of its interests, assets, and effects with it. David David McAuley International Policy Manager Verisign Inc. 703-948-4154 From: ws2-jurisdiction-bounces(a)icann.org [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Paul Rosenzweig Sent: Wednesday, February 22, 2017 11:57 AM To: 'Greg Shatan' <gregshatanipc(a)gmail.com>; 'ws2-jurisdiction' <ws2-jurisdiction(a)icann.org> Subject: [EXTERNAL] Re: [Ws2-jurisdiction] Questions based on Parminder's statements in the last meeting about GAC participation Greg/All My responses are as follows (questions repeated for clarity): First, for any GAC members, is it your position that you agree with Parminder's statements regarding GAC members? Not applicable. Second, for all participants, do you agree that only a law that has been democratically arrived at by all the citizens of the world can be applied to ICANN? Are you aware of any such body of law? I do not agree. To begin with there is no realistic possibility of any law being created that has been democratically arrived at by all citizens of the world. To say that only this law can apply to ICANN is to say that no law at all can apply to ICANN. I am not aware of any body of law that would satisfy this criteria, as almost all international law is adopted by nations, not by the citizens of the world, and it is not the case that all of the nations participating in the creation of an international body of law are themselves democratically representative. Third, for all participants, do you agree that US law cannot be applied to ICANN because it has only been democratically arrived at by US citizens? I do not agree. US law can and will apply to any institution that is subject to it. That include people who are US citizens; companies that do business in the US and anyone who is present in the US. The same of course is true of every nation in the world – the all assert jurisdiction over citizens, residents, and companies/individuals with substantial interests that effect their country. If instead of “cannot” (a descriptive) you mean “should not” (a normative) I disagree as well. First, of course, there is no real use in establishing a norm that cannot practically be realized. Second, and more importantly, subjecting ICANN to US law (and also to the laws of other States) is precisely how we achieve accountability. In the absence of applicable law, ICANN becomes unaccountable. Fourth, for all participants, do you agree that if ICANN is sued in a jurisdiction where it has an office, other than its jurisdiction of incorporation and loses, that ICANN can avoid complying with the judgment by closing its office in that jurisdiction? I do not agree. This is simply wrong as a matter of law in the US, in Germany, and in Britain, which are the three countries whose law I am familiar with. I imagine it is also wrong for many (most?) other nations. So long as ICANN has any interests/assets/effects in a country, it cannot effectively avoid that jurisdication. I would also note that the underlying suggestion (that ICANN seek to avoid valid judgements rendered by courts in a jurisdiction) is fundamentally lawless and that ICANN should not be in a position of suggesting that it can avoid the rule of law by artificial means of closing its operations. Fifth, assuming for the sake of discussion that "ICANN primarily is a body with a global government function and only secondarily, an US nonprofit," what is the relevance, if any, to our primary tasks of enhancing ICANN's accountability and determining whether ICANN's accountability is negatively affected by its current jurisdictional set-up? As far as I can tell, this is irrelevant. [It is also wrong, but you insisted on assuming the premise.] More to the point, the status of ICANN as a US non profit is an essential part of the accountability mechanisms that we just spend many thousands of hours creating. Paul Paul Rosenzweig paul.rosenzweig(a)redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com> O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 www.redbranchconsulting.com<http://www.redbranchconsulting.com/> My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684 From: ws2-jurisdiction-bounces(a)icann.org<mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Greg Shatan Sent: Monday, February 20, 2017 10:12 PM To: ws2-jurisdiction <ws2-jurisdiction(a)icann.org<mailto:ws2-jurisdiction@icann.org>> Subject: [Ws2-jurisdiction] Questions based on Parminder's statements in the last meeting about GAC participation All, On our last call there were some remarks by Parminder about the position of GAC members regarding ICANN. It was not clear to me that GAC members actually held the beliefs ascribed to them. We were not able to determine this on the call, one way or the other. I've now excerpted the relevant sections of the transcript and confirmed them against the audio. These sections are attached. In addition to the question about the GAC, these statements raise a few other questions: First, for any GAC members, is it your position that you agree with Parminder's statements regarding GAC members? Second, for all participants, do you agree that only a law that has been democratically arrived at by all the citizens of the world can be applied to ICANN? Are you aware of any such body of law? Third, for all participants, do you agree that US law cannot be applied to ICANN because it has only been democratically arrived at by US citizens? Fourth, for all participants, do you agree that if ICANN is sued in a jurisdiction where it has an office, other than its jurisdiction of incorporation and loses, that ICANN can avoid complying with the judgment by closing its office in that jurisdiction? Fifth, assuming for the sake of discussion that "ICANN primarily is a body with a global government function and only secondarily, an US nonprofit," what is the relevance, if any, to our primary tasks of enhancing ICANN's accountability and determining whether ICANN's accountability is negatively affected by its current jurisdictional set-up? Thank you. Greg Greg Shatan C: 917-816-6428<tel:(917)%20816-6428> S: gsshatan Phone-to-Skype: 646-845-9428<tel:(646)%20845-9428> gregshatanipc(a)gmail.com<mailto:gregshatanipc@gmail.com>

6 10