August 2017 - Ws2-jurisdiction

REMINDER: DEADLINE FOR SUBMISSION OF POTENTIAL ISSUES IS 23:59 UTC TODAY (27 AUGUST 2017)
by Greg Shatan Aug. 27, 2017

Aug. 27, 2017

---------- Forwarded message ---------- From: Greg Shatan <gregshatanipc(a)gmail.com> Date: Wed, Aug 23, 2017 at 12:15 PM Subject: Agenda and Documents for Today's Call To: ws2-jurisdiction <ws2-jurisdiction(a)icann.org> Cc: "acct-staff(a)icann.org" <acct-staff(a)icann.org>, Bernard Turcotte < turcotte.bernard(a)gmail.com>, Brenda Brewer <brenda.brewer(a)icann.org> All, The agenda and documents for today's call are attached. Please note that the 24 hours Bernie and I allowed ourselves to collate all submissions into a single document proved to be insufficient, due to the timing, volume and nature of the submissions. We will continue to work on this over the next few days. I've indicated in the past that there would be no absolute deadline for submission of proposed issues until it was absolutely clear that a deadline was being set. For this reason, and since the combined document is still in progress, the Subgroup's participants can continue to send submissions until *23:59 UTC on Sunday, August 27. This will be the final deadline for submission of issues. **It would be helpful if any further potential issues and recommendations submitted hew closely to the request for succinctness. Thank you.* I look forward to today's call. Greg

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Re: [Ws2-jurisdiction] [EXTERNAL] Re: ISSUE: In rem Jurisdiction over ccTLDs
by Jorge.Cancio＠bakom.admin.ch Aug. 24, 2017

Aug. 24, 2017

Dear Phil, could you please clarify whether the legal basis/fundament discussed in the ".ir" case is the same as the one contained in 18 U.S.C. § 981(b)(2), which provides a legal framework for property seizures by the government? thanks in advance Jorge ________________________________ Von: Phil Corwin <psc(a)vlaw-dc.com> Datum: 24. August 2017 um 19:55:36 MESZ An: parminder <parminder(a)itforchange.net>, ws2-jurisdiction(a)icann.org <ws2-jurisdiction(a)icann.org> Betreff: Re: [Ws2-jurisdiction] [EXTERNAL] Re: ISSUE: In rem Jurisdiction over ccTLDs With the .IR decision in the DC Circuit as precedent, the probability of a US court seeking to order ICANN to take adverse action against a ccTLD at the top level approaches zero. Further, and this is a personal view, other than perhaps .KP, if a US court was ever going to take adverse action against a ccTLD it would have been against .IR yet it chose not to do so – in large part because, as Milton pointed out, “the court decided that court-ordered seizure of the ccTLD would impair the interest of ICANN in a globally acceptable delegation process and possible also impair the interest of its registrants”. Indeed, one could say that ICANN’s US domicile and historic (pre-transition) relationship with the US government benefitted the .IR ccTLD. As for second level ccTLD domains, under the ACPA there can be no effective exercise and enforcement of its In Rem proceedings unless the ccTLD’s operation is conducted by a US-based registry operator or the domain registrant has chosen to utilize a US-based registrar. So there is no issue for ccTLDs operated by or within their associated nation where the domains are registered via a non-US party. While nothing is ever impossible, IMHO this WG should not expend continued time and resources addressing highly improbable scenarios when it is flirting with being declared a failed policy exercise if it does not up its game and meet certain benchmark requirements by ICANN 60, which is only two months away. Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/Cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey From: ws2-jurisdiction-bounces(a)icann.org [mailto:ws2-jurisdiction-bounces@icann.org]On Behalf Of parminder Sent: Thursday, August 24, 2017 12:16 PM To: ws2-jurisdiction(a)icann.org Subject: Re: [Ws2-jurisdiction] [EXTERNAL] Re: ISSUE: In rem Jurisdiction over ccTLDs On Thursday 24 August 2017 08:14 PM, Phil Corwin wrote: As I just pointed out in a prior email, the exercise of In Rem jurisdiction still requires some party related to the domain (registry or registrar) to be subject to US jurisdiction. So unless a nation has its ccTLD operated by a US-based entity, and unless a ccTLD registrant has opted to use a US-based registrar, this is a non-issue for ccTLDs. That US based party is ICANN, the owner of the DNS root. This fact enables In Rem jurisdiction. Also, as I pointed out, this In Rem jurisdiction is completely independent of ICANN’s incorporation and even its existence. I am sorry if I sound flippant, but seriously, this sentence to me appears to be in contradiction to what you say above. For, it is because DNS root owner, ICANN is in the US, and not immune from its jurisdiction, In Rem jurisdiction comes into picture, which you rightly say "still requires some party related to the domain to be subject to US jurisdiction", if only for enforcement of any judicial writ. parminder Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/Cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey From:ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org]On Behalf Of Mueller, Milton L Sent: Thursday, August 24, 2017 10:39 AM To: ws2-jurisdiction(a)icann.org<mailto:ws2-jurisdiction@icann.org> Subject: Re: [Ws2-jurisdiction] [EXTERNAL] Re: ISSUE: In rem Jurisdiction over ccTLDs Yes, Becky this is correct, ACPA is an anti-cybersquatting law for trademark protection and was written with second-level domains in mind. I guess it is possible that a gTLD would be subject to ACPA – but if and only if someone managed to cybersquat a trademark in the TLD level. And since ICANN’s TLD awarding process is so heavily biased toward trademark owners, it is unlikely that a TM-violating TLD (say, giving .IBM to Parminder) would ever happen. But if it did, I supposed it could be applied. I can’t see how it could ever be applied to a ccTLD. From:ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org]On Behalf Of Burr, Becky via Ws2-jurisdiction Sent: Tuesday, August 22, 2017 7:02 PM To: Jorge.Cancio(a)bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>;jordan(a)internetnz.net.nz<mailto:jordan@internetnz.net.nz>; thiago.jardim(a)itamaraty.gov.br<mailto:thiago.jardim@itamaraty.gov.br>; ws2-jurisdiction(a)icann.org<mailto:ws2-jurisdiction@icann.org> Subject: Re: [Ws2-jurisdiction] [EXTERNAL] Re: ISSUE: In rem Jurisdiction over ccTLDs Fwiw, to the extent that US courts have in rem jurisdiction over domain names, my recollection is that is a function of very specific anti-squatting trademark law and is extremely unlikely to apply to ccTLDs. J. Beckwith Burr Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW DC 20006 Office: +1.202.533.2932 Mobile: +1.202.352.6367 _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction(a)icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction

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Re: [Ws2-jurisdiction] [EXTERNAL] Re: ISSUE: In rem Jurisdiction over ccTLDs
by Burr, Becky Aug. 24, 2017

Aug. 24, 2017

Fwiw, to the extent that US courts have in rem jurisdiction over domain names, my recollection is that is a function of very specific anti-squatting trademark law and is extremely unlikely to apply to ccTLDs. J. Beckwith Burr Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW DC 20006 Office: +1.202.533.2932 Mobile: +1.202.352.6367 Follow Neustar: LinkedIn / Twitter Reduce your environmental footprint. Print only if necessary. ________________________________ The information contained in this email message is intended only for the use of the recipient(s) named above and may contain confidential and/or privileged information. If you are not the intended recipient you have received this email message in error and any review, dissemination, distribution, or copying of this message is strictly prohibited. If you have received this communication in error, please notify us immediately and delete the original message. From: <ws2-jurisdiction-bounces(a)icann.org<mailto:ws2-jurisdiction-bounces@icann.org>> on behalf of "Jorge.Cancio(a)bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>" <Jorge.Cancio(a)bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>> Date: Tuesday, August 22, 2017 at 4:54 AM To: "jordan(a)internetnz.net.nz<mailto:jordan@internetnz.net.nz>" <jordan(a)internetnz.net.nz<mailto:jordan@internetnz.net.nz>>, "thiago.jardim(a)itamaraty.gov.br<mailto:thiago.jardim@itamaraty.gov.br>" <thiago.jardim(a)itamaraty.gov.br<mailto:thiago.jardim@itamaraty.gov.br>>, "ws2-jurisdiction(a)icann.org<mailto:ws2-jurisdiction@icann.org>" <ws2-jurisdiction(a)icann.org<mailto:ws2-jurisdiction@icann.org>> Subject: [EXTERNAL] Re: [Ws2-jurisdiction] ISSUE: In rem Jurisdiction over ccTLDs Dear Jordan and all, I do not think that the issue proposed and the CCNSO process and safeguards are mutually exclusive. Kind regards Jorge Von: ws2-jurisdiction-bounces(a)icann.org<mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] Im Auftrag von Jordan Carter Gesendet: Dienstag, 22. August 2017 11:59 An: Thiago Braz Jardim Oliveira <thiago.jardim(a)itamaraty.gov.br<mailto:thiago.jardim@itamaraty.gov.br>>; ws2-jurisdiction <ws2-jurisdiction(a)icann.org<mailto:ws2-jurisdiction@icann.org>> Betreff: Re: [Ws2-jurisdiction] ISSUE: In rem Jurisdiction over ccTLDs Dear Thiago, dear all, Dispute resolution regarding ccTLD matters is currently the subject of a PDP in the ccNSO. This isn't the perfect link but does give some info: https://www.icann.org/public-comments/ccnso-pdp-retirement-review-2017-05-2…<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_public-2…> While the existence of the PDP does not prevent this sub-group of the CCWG discussing this matter, my understanding of ICANN's bylaws is that the Board would not be able to accept any WS2 recommendation on this subject. That is a hard won protection of our ccTLD independence that has been a feature of the ICANN system since the ccNSO was formed. As such, the Jurisdiction group may prefer to focus its effort and energy on matters where implementable recommendations can be made by the CCWG. Hope this helps, Jordan On Tue, 22 Aug 2017 at 1:32 PM, Thiago Braz Jardim Oliveira <thiago.jardim(a)itamaraty.gov.br<mailto:thiago.jardim@itamaraty.gov.br>> wrote: Dear All, For your consideration: Issue 3: In rem Jurisdiction over ccTLDs Description: US courts have in rem jurisdiction over domain names as a result of ICANN's place of incorporation, and US courts and US enforcement agencies could possibly exercise its exclusive enforcement jurisdiction over ICANN to compel it to re-delegate ccTLDs. This is contrary, in particular, to paragraph 63 of the Tunis Agenda: "Countries should not be involved in decisions regarding another country's country-code Top-Level Domain (ccTLD). Their legitimate interests, as expressed and defined by each country, in diverse ways, regarding decisions affecting their ccTLDs, need to be respected, upheld and addressed via a flexible and improved framework and mechanisms." It is to be noted that while paragraph 63 may not state that States have sovereignty over ccTLDs, it does establish that States should not interfere with ccTLDs. Further, an obligation on States not to interfere with certain matters, as ccTLDs, need not be based on the principle of sovereignty to exist, nor does it suppose that the matter is one subject to the sovereignty of States. For States can simply agree to limit their ability to interfere with ccTLDs delegated to other countries, and this is the principle embodied in Paragraph 63 of the Tunis Agenda. Proposed solution: ICANN should seek jurisdictional immunities in respect of ICANN's activities relating to the management of ccTLDs. In addition, it should be included in ICANN Bylaws an exclusive choice of forum provision, whereby disputes relating to the management of any given ccTLD by ICANN shall be settled exclusively in the courts of the country to which the ccTLD in question refer. A similar exclusive choice of forum clause shall be included in those contracts ICANN may have with ccTLD managers, where such a contract exists. Best regards, Thiago _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction(a)icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_l…> -- Jordan Carter | Chief Executive, InternetNZ +64-21-442-649 | jordan(a)internetnz.net.nz<mailto:jordan@internetnz.net.nz> Sent on the run, apologies for brevity

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CCWG-Accountability-WS2-Jurisdiction-Meeting-20170809-FinalTranscript with corrections by Samantha Eisner of ICANN Legal
by Bernard Turcotte Aug. 24, 2017

Aug. 24, 2017

All, As promised please find attached the final transcript of the August 1st Jurisdiction call where Sam gave a presentation on OFAC. Sam has reviewed the transcript and made corrections in how her presentation and answers were recorded where she saw fit in red line - attached. Although not a perfect transcript Sam's answers to questions should now be clear for all. I would like to thank Sam on behalf of the Jurisdiction group for taking the time to do this. Cheers Bernard Turcotte ICANN Support Staff to the CCWG-Accountability-WS2

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ISSUE: In rem Jurisdiction over ccTLDs
by Thiago Braz Jardim Oliveira Aug. 24, 2017

Aug. 24, 2017

Dear All, For your consideration: Issue 3: In rem Jurisdiction over ccTLDs Description: US courts have in rem jurisdiction over domain names as a result of ICANN's place of incorporation, and US courts and US enforcement agencies could possibly exercise its exclusive enforcement jurisdiction over ICANN to compel it to re-delegate ccTLDs. This is contrary, in particular, to paragraph 63 of the Tunis Agenda: "Countries should not be involved in decisions regarding another country's country-code Top-Level Domain (ccTLD). Their legitimate interests, as expressed and defined by each country, in diverse ways, regarding decisions affecting their ccTLDs, need to be respected, upheld and addressed via a flexible and improved framework and mechanisms." It is to be noted that while paragraph 63 may not state that States have sovereignty over ccTLDs, it does establish that States should not interfere with ccTLDs. Further, an obligation on States not to interfere with certain matters, as ccTLDs, need not be based on the principle of sovereignty to exist, nor does it suppose that the matter is one subject to the sovereignty of States. For States can simply agree to limit their ability to interfere with ccTLDs delegated to other countries, and this is the principle embodied in Paragraph 63 of the Tunis Agenda. Proposed solution: ICANN should seek jurisdictional immunities in respect of ICANN's activities relating to the management of ccTLDs. In addition, it should be included in ICANN Bylaws an exclusive choice of forum provision, whereby disputes relating to the management of any given ccTLD by ICANN shall be settled exclusively in the courts of the country to which the ccTLD in question refer. A similar exclusive choice of forum clause shall be included in those contracts ICANN may have with ccTLD managers, where such a contract exists. Best regards, Thiago

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Recordings, DAIRs, Raw Caption Notes for Jurisdiction Subgroup Meeting #43 | 23 August 2017
by MSSI Secretariat Aug. 24, 2017

Aug. 24, 2017

Hello all, You may find the recordings, Decisions, Action Items, Requests (DAIRs), and raw caption notes for CCWG Accountability WS2 Jurisdiction Subgroup Meeting #43 – 23 August 2017 posted at https://community.icann.org/x/TQIhB. The transcript will be posted on when it becomes available (usually in 3 to 5 business days after the call). A copy of the DAIRs and raw caption notes may be found below. Thank you. With kind regards, Brenda Brewer, Projects & Operations Assistant Multistakeholder Strategy & Strategic Initiatives (MSSI) Internet Corporation for Assigned Names and Numbers (ICANN) [cid:image001.png@01D31CB8.9B7EE060] Action Items: * GS and Staff will work on completing the list of issues for the next meeting. * GS will propose a draft recommendation on OFAC to the list prior to the next call. Raw Captioning Notes Disclaimer: This rough edit transcript, which may contain missing, misspelled or paraphrased words, is only provided for your immediate review and is not certified as verbatim and is not to be cited in any way. * Word Doc<https://community.icann.org/download/attachments/69272141/CCWG-Accountabili…> * PDF<https://community.icann.org/download/attachments/69272141/CCWG-Accountabili…> Decisions: * It was accepted to initially proceed with the following issues until the issues list is completed: * OFAC * Choice of law for registry and registrar agreements. Requests: * (none) Documents Presented * The Revised Path Forward<https://community.icann.org/download/attachments/69272141/The%20Revised%20P…>

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[Issue and Solution] Non-US Based Registrars and Following OFAC
by farzaneh badii Aug. 23, 2017

Aug. 23, 2017

One of the jurisdictional issues that were discussed is that some non-US based registrars apply OFAC even when they are not obliged to and merely based on their assumption that because of their contract with ICANN they have to apply OFAC. One solution could be for ICANN to clarify to the registrars that this is not the case and they do not have "to follow OFAC solely on the basis of their having a contract with ICANN". Is it possible to make such clarification? Farzaneh ---------- Forwarded message ---------- From: Paul Rosenzweig <paul.rosenzweig(a)redbranchconsulting.com> Date: Tue, Aug 8, 2017 at 10:28 AM Subject: RE: [Ws2-jurisdiction] Some interesting points from the OFAC Call [WAS RES: WRITTEN ANSWERS TO THE QUESTIONS RAISED DURING THE CALL] To: farzaneh badii <farzaneh.badii(a)gmail.com>, Mike Rodenbaugh < mike(a)rodenbaugh.com> Cc: acct-staff(a)icann.org, Thomas Rickert <thomas(a)rickert.net>, ws2-jurisdiction <ws2-jurisdiction(a)icann.org> This is a good idea. The question then is one of implementation. How would that be made clear to the contracted parties. I suppose ICANN (through Sam or someone else) could publish its interpretation to that effect. I doubt, however, that ICANN would be willing to warranty the correctness of this and hold any one harmless if it was in error. Paul Paul Rosenzweig paul.rosenzweig(a)redbranchconsulting.com O: +1 (202) 547-0660 <(202)%20547-0660> M: +1 (202) 329-9650 <(202)%20329-9650> VOIP: +1 (202) 738-1739 <(202)%20738-1739> 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(a)icann.org] *On Behalf Of *farzaneh badii *Sent:* Monday, August 7, 2017 4:08 PM *To:* Mike Rodenbaugh <mike(a)rodenbaugh.com> *Cc:* acct-staff(a)icann.org; Thomas Rickert <thomas(a)rickert.net>; ws2-jurisdiction <ws2-jurisdiction(a)icann.org> *Subject:* Re: [Ws2-jurisdiction] Some interesting points from the OFAC Call [WAS RES: WRITTEN ANSWERS TO THE QUESTIONS RAISED DURING THE CALL] I also agree with Jeff and Mike. IGP had proposed this change back in January and we hope it happens. One more issue that we discussed during the meeting was about the uncertainty regarding the application of OFAC to non US-based registrars. Some registrars not based in the US might want to avoid risk and not provide services for sanctioned countries because of their contract with ICANN. I think we should follow up on this issue and solve it by just clarifying ( as Steve asked and Sam confirmed ) "that contracted parties are not obligated to follow OFAC solely on the basis of their having a contract with ICANN". Farzaneh On Mon, Aug 7, 2017 at 3:16 PM, Mike Rodenbaugh <mike(a)rodenbaugh.com> wrote: I agree with Jeff's proposal that ICANN be required to make a good faith application for OFAC license whenever it is necessary to fulfill the purpose of registry and/or registrar agreements. And I support his 2d question, requesting details. Note that OFAC doesn't just hamper registries and registrars located or formed in sanctioned countries, but also registries and registrars with officers, directors or significant shareholders from any of the sanctioned countries (regardless where the business is located or formed). Note further that OFAC licenses are time-limited, requiring periodic reapplication. And ICANN legal has told me that they were not required to seek an OFAC license for my client, even though that client had executed registry agreements with ICANN. I disputed that, and they got the license; but there is no guarantee they will seek it again when it expires, even though the registries are live. I can't see any good reason why ICANN should not be required at least to make a good faith effort to get a license. It seems at least to be implied in the registry agreement anyway, via the covenant of good faith and fair dealing inherent in every contract (at least under California law). If ICANN refused to seek a license, it would frustrate the purpose of the entire agreement. Mike Rodenbaugh RODENBAUGH LAW tel/fax: +1.415.738.8087 <(415)%20738-8087> http://rodenbaugh.com On Mon, Aug 7, 2017 at 11:10 AM, Jeff Neuman <jeff.neuman(a)comlaude.com> wrote: All, Is someone able to document the questions that were not answered during the teleconference? I was on the teleconference, which was great, and I am not sure what still needs to be answered. Also, it seems like we have lost some sight of the main points raised during the call. 1. One of the main points I got on the call was that the language found on the Registrar Accreditation page of the ICANN site states: *”** 4. Application Process.* *…..* *Applicant acknowledges that 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. **However, Applicant acknowledges that ICANN is under no obligations to seek such licenses and, in any given case, OFAC could decide not to issue a requested license**.” [Emphasis Added]* ………………… Although the language states that ICANN does not have to seek licenses for residents of sanctioned countries, they generally do. I would like to see that last paragraph state in writing that they are required to seek a license, but acknowledge that OFAC could decide not to issue a requested license. This would ensure that we could have registries and/or registrars in these countries able to at least apply to become accredited. 1. The second point that was interesting was that ICANN seeks licenses for all changes to the root zone if initiated by entities or residents in the OFAC sanctioned countries. It would be helpful to know the terms (and limits) of those licenses (from an accountability standpoint). Are there certain changes that cannot be made without additional licenses, etc. Thanks again for the information on last weeks call and I look forward to discussing the substance. https://www.icann.org/resources/pages/application-2012-02-25-en *Jeffrey J. Neuman* *Senior Vice President *|*Valideus USA* | *Com Laude USA* 1751 Pinnacle Drive, Suite 600 Mclean, VA 22102, United States E: jeff.neuman(a)valideus.com or jeff.neuman(a)comlaude.com T: +1.703.635.7514 <(703)%20635-7514> M: +1.202.549.5079 <(202)%20549-5079> @Jintlaw *From:* ws2-jurisdiction-bounces(a)icann.org [mailto:ws2-jurisdiction- bounces(a)icann.org] *On Behalf Of *Mueller, Milton L *Sent:* Monday, August 7, 2017 7:51 AM *To:* Benedicto Fonseca Filho <benedicto.fonseca(a)itamaraty.gov.br>; Kavouss Arasteh <kavouss.arasteh(a)gmail.com>; Greg Shatan <gregshatanipc(a)gmail.com>; ws2-jurisdiction <ws2-jurisdiction(a)icann.org>; acct-staff(a)icann.org; Thomas Rickert <thomas(a)rickert.net>; Samantha Eisner <Samantha.Eisner(a)icann.org>; Bernard Turcotte <turcotte.bernard(a)gmail.com>; Jordan Carter < jordan(a)internetnz.net.nz>; León Felipe Sánchez Ambía <leonfelipe(a)sanchez.mx> *Subject:* Re: [Ws2-jurisdiction] RES: WRITTEN ANSWERS TO THE QUESTIONS RAISED DURING THE CALL The question I would ask you, Benedicto, and all others suggesting a rather elaborate documentation process, is this: Would you rather this WG develops a final report, or spend most of its remaining time documenting the results of a conference call, the transcript of which is readily available? If you choose the latter, are you then going to complain that we did not finish our work? *From:* ws2-jurisdiction-bounces(a)icann.org [mailto:ws2-jurisdiction- bounces(a)icann.org <ws2-jurisdiction-bounces(a)icann.org>] *On Behalf Of *Benedicto Fonseca Filho *Sent:* Thursday, August 3, 2017 8:23 PM *To:* Kavouss Arasteh <kavouss.arasteh(a)gmail.com>; Greg Shatan < gregshatanipc(a)gmail.com>; ws2-jurisdiction <ws2-jurisdiction(a)icann.org>; acct-staff(a)icann.org; Thomas Rickert <thomas(a)rickert.net>; Samantha Eisner < Samantha.Eisner(a)icann.org>; Bernard Turcotte <turcotte.bernard(a)gmail.com>; Jordan Carter <jordan(a)internetnz.net.nz>; León Felipe Sánchez Ambía < leonfelipe(a)sanchez.mx> *Subject:* [Ws2-jurisdiction] RES: WRITTEN ANSWERS TO THE QUESTIONS RAISED DURING THE CALL Dear all, Let me endorse Kavouss' request - also supported by Seun and Jorge - that answers be provided in written form, with whatever disclaimer might be necessary to ensure they are not in the form of any official legal advice or the like. Judging from the last call's transcript, not all questions formulated upon the rapporteur´s invitation were systematically covered during the call, so it is only fair to have the unanswered questions also addressed, preferably in written form. I'd also reiterate the views expressed by others: for the sake of clarity and to allow and promote further participation, it would be necessary to have also in written form (even if succinct) the answers to the questions that were supposedly covered during last call as the transcript does not allow to clearly correlate each question to each comment/answer. Further, several questions were asked during last call, some of which may have been questions that were only asked at that time. It seems that none of them had to pass the test of consensus either to be asked or to be answered. So it would be unfair now to ask for support for certain questions to be asked and then answered, particularly those questions that were only asked following the rapporteur's invitation in the mailing list. Finally, I believe that no one would ever feel their views are systematically disregarded if their requests or suggestions were subjected to the same test that is applied to other´s proposals… Best regards, Benedicto ------------------------------ *De:* ws2-jurisdiction-bounces(a)icann.org [ws2-jurisdiction-bounces(a)icann.org] em nome de Kavouss Arasteh [kavouss.arasteh(a)gmail.com] *Enviado:* quinta-feira, 3 de agosto de 2017 13:48 *Para:* Greg Shatan; ws2-jurisdiction; acct-staff(a)icann.org; Thomas Rickert; Samantha Eisner; Bernard Turcotte; Jordan Carter; León Felipe Sánchez Ambía *Assunto:* Re: [Ws2-jurisdiction] WRITTEN ANSWERS TO THE QUESTIONS RAISED DURING THE CALL Greg I do not understand what you are talking ABOUT Samantha, during her presentation, three times emphasized that if we had questions we could raise them with her. Read the Transcript. Two of these three times she referred to me. Pls do not be so formalistic. Let us do our work. pls do not complain to anyone about me as it would have negative IMPACT . This issue is important. Then I was formally invited to raise my questions with her, pls read transcript after I was so invited. What do you want to prove? We are not to be treated like student We should be respected. The tone of your message is offensive even though you have used diplomatic offensive language .That does not work We are part of a group and must understand each other’s problems What you stated is quasi preventing me to speak freely? Why there is prohibition to reply to the invitation that she launched to us and to me? Why I should not address my question to ICANN STAFF? She does not work for you. She is working for ICANN and we are all part of ICANN i replied to Sam’s invitation that is all. Why I need the approval of the group in which over represented by those that do not wish that I talk at all ? Cheers On Tue, Aug 1, 2017 at 9:55 PM, Greg Shatan <gregshatanipc(a)gmail.com> wrote: Kavouss, Kindly direct your request to the Subgroup, and not to Sam. This is a matter for the Subgroup to consider, rather than any individual participant. The Subgroup can take up your request and decide whether to ask for written responses to questions (and if so, which questions). Thank you. Best regards, Greg On Tue, Aug 1, 2017 at 10:15 AM, Kavouss Arasteh <kavouss.arasteh(a)gmail.com> wrote: Dear Sam, With tks to your presentation, pls kindly note that I nned written answers to the questions raised before the meeting and those during the meeing either as intervention or in the chat. Regards Kavouss _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction(a)icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction(a)icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction

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Agenda and Documents for Today's Call
by Greg Shatan Aug. 23, 2017

Aug. 23, 2017

All, The agenda and documents for today's call are attached. Please note that the 24 hours Bernie and I allowed ourselves to collate all submissions into a single document proved to be insufficient, due to the timing, volume and nature of the submissions. We will continue to work on this over the next few days. I've indicated in the past that there would be no absolute deadline for submission of proposed issues until it was absolutely clear that a deadline was being set. For this reason, and since the combined document is still in progress, the Subgroup's participants can continue to send submissions until *23:59 UTC on Sunday, August 27. This will be the final deadline for submission of issues. **It would be helpful if any further potential issues and recommendations submitted hew closely to the request for succinctness. Thank you.* I look forward to today's call. Greg

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ISSUE: US Jurisdiction over ICANN's activities that comply with GAC advice or that are otherwise based on powers or prerogatives recognised onto Governments under ICANN's multistakeholder governance model
by Thiago Braz Jardim Oliveira Aug. 23, 2017

Aug. 23, 2017

Dear All, For your consideration: Issue 2: Jurisdiction over ICANN's activities that comply with GAC advice or that are otherwise based on powers or prerogatives recognised onto Governments under ICANN's multistakeholder governance model Description: The courts of ICANN's place of incorporation are in a unique position to both exercise jurisdiction and enforce judgments (i.e. jurisdiction to prescribe and, more importantly, exclusive enforcement jurisdiction) over disputes in respect of the management of domain names opposing ICANN to some allegedly aggrieved party (for example, a dispute over ICANN's rejection of an application for new gTLDs), based on the "localisation" of the "act complained of" and the "act to be enforced" (i.e. all relating to the management of the root zone by ICANN, which has been said to take place in the territory of the country of incorporation and is subject to the exclusive territorial jurisdiction of that country). These disputes, however, may relate to ICANN's activities that have been the subject of GAC advice or are otherwise based on powers recognised onto Governments according to ICANN's laws (for example, the disputed act may have been prompted by ICANN's decision to follow GAC advice). Activities that have been the subject of GAC advice or of Governmental authority as recognized under ICANN's laws involve public policy issues that are for Governments to act upon on an equal footing. Their settlement should be through agreed dispute settlement mechanisms according to agreed rules, and they should not be subject to the courts of any country nor, for that matter, to the courts of the country of incorporation. Independent accountability mechanisms for review of ICANN's actions will remain in place, and there shall be provision for arbitration in substitution for local courts. Proposed solution: ICANN shall establish a compulsory dispute settlement mechanism, or commit to have recourse to international arbitration, for disputes relating to ICANN's activities that have been the subject of GAC advice or are otherwise subject to Governmental authority as recognized under ICANN's laws. Once a compulsory dispute settlement mechanism has been agreed for such disputes, ICANN shall seek jurisdictional immunities from the local courts in their respect. In addition, ICANN should include in its agreements an exclusive choice of forum clause, whereby disputes relating to ICANN's activities that have been the subject of GAC advice or that are otherwise subject to Governmental authority as recognized under ICANN's laws shall be settled exclusively through recourse to arbitration. With respect to arbitration in such cases, ICANN shall commit to exercise its party's right to appoint arbitrators in consultation with the GAC or the Governments concerned. Dispute as to whether the GAC or Governments are entitled to exercise powers recognized under ICANN's laws in respect to a given subject, shall be settled through the agreed and compulsory dispute settlement mechanism referred to above, and it should involve the interested parties and the GAC or the Governments concerned. Best regards, Thiago

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ISSUE - unilateral jurisdiction of one country over ICANN
by parminder Aug. 23, 2017

Aug. 23, 2017

Issue: Various branches and agencies of the United States of America - from judicial and legislative to executive, including its many regulatory agencies - have exclusive (like no other country's) direct legal remit and power over ICANN, as a US non-profit organisation, with respect to practically every aspect that can conceivably be affected by state power (their range is so enormous that it is vain to begin listing them). These agencies/ y can and do exercise them at any time in pursuance of US law and policies, that have the primary purpose to uphold US public interest and US constitution. Many examples of such powers and their possible use have been given invarious public submissions <https://community.icann.org/display/WEIA/Jurisdiction+Questionnaire> to this group, including this one <https://community.icann.org/display/WEIA/Jurisdiction+Questionnaire?preview…> , and also this <https://www.itforchange.net/sites/default/files/Jurisdiction%20of%20ICANN.p…>. Since ICANN is supposed to make policies and implement them with regard to the global DNS in the global public interest and not just US public interest, such unilateral availability and use of legal state power with one country, the US, over ICANN is untenable, and goes against basic principles of democracy including of "no legislation/ policy without representation". These principles are recognised by UN instruments as human rights, and most countries today including the US are built over them. Proposed solution: ICANN be granted immunity under the International Organisations Immunities Act of the US. This immunity should be tailored/customised in a manner that ICANN still remains subject to non profit law of the state of California under which it is registered, and its organisational processes function, and other such US laws and institutions that are strictly required for ICANN to be able to satisfactorily carry out its organisational, policy and technical functions (an assessment with respect to which should be undertaken asap). Additional notes: If I may add, this has been "THE" jurisdiction question since the WSIS days if not earlier ( actually since the time ICANN was formed). Whether or not we are able to agree to recommending any solution to this jurisdiction question, it will be an unacceptable travesty of facts and history if this group does not accept this as an important, if not "THE", jurisdiction question in relation to ICANN. Whether or not this group is able to contribute to global public interest by making any positive progress on the question of ICANN's jurisdiction, following the principles of good governance and democracy, let it not regress and actually serve to obfuscate what is seen and known as the "ICANN's jurisdiction" question by everyone, by the global public at large. (For instance, in ICANN's own internal discussions like when the ICANN chair commissioned this report <https://archive.icann.org/en/psc/corell-24aug06.html>on the jurisdiction issue). If we can accept that this is a key jurisdiction (even if not "THE") question, but are not able to agree on a proposed solution, let us just write that in our report. But let us not contribute to alt-truth, a very dangerous phenomenon that is often spoke of nowadays. Both as a group, and individually as responsible persons - given an important global political responsibility -- we owe at least that much to ourselves. As for myself, and the groups that I work with, we will stand resolutely till the end in the path of any such synthesis of artificial reality - when a global group tasked to address the decades old democratic question of unilateral jurisdiction of one country over the global governance body, ICANN, comes up with a report that asserts that this is not a jurisdiction issue at all, or at least not an important one. parminder

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