February 2018 - Ws2-jurisdiction

Fwd: PLEASE REVIEW: Almost Final Draft Report for Review before Submission to Plenary on 2 March
by Greg Shatan March 1, 2018

March 1, 2018

All, Attached in Word and PDF is the almost final Draft Report, based on today’s call. This is also available in Google Docs at https://docs.google.com/document/d/1rdMJyvZdyN9TApT6gx_3NwpdvIL7YKHEUD7tNfL…. Please review and comment. I have marked in the margin the sections corresponding to the “Notes” in the chart distributed before today’s call. In particular please review and respond to the suggested text on page 12 at the end of the “Overview of the Work of the Subgroup.” There are two proposed additions that grew out of Note 4.1. The first received broad support on the call without noted objections. The second received both support and objections on the call. Since there was no clear path forward from the call, it is important that as many participants as possible give this careful consideration and provide their views on this second proposed addition. This text reads as follows: The late suggestion added to the report that “Further Discussions of Jurisdiction-Related Concerns” are needed, in particular on jurisdictional immunities, found echo in several comments subsequently received, but these comments did not bring any changes to the report, nor could they be considered in detail, on the understanding that the existing support for “further discussions” to address unresolved concerns, including in other fora, had already been acknowledged. I look forward to hearing from you all, with regard to the report as a whole and any specific aspects, in particular the proposed text above. Since the final draft must be submitted no later than 23:59 UTC on 2 March, I am setting *a deadline of 18:00 UTC on 2 March* for all responses. Thank you! Greg _________________________________________________________________ This message is being sent from a Law Firm and may contain CONFIDENTIAL or PRIVILEGED information. If you are not the intended recipient, do not print, copy or distribute this message or any attachments. Advise the sender immediately by reply e-mail, and delete this message and attachments without retaining a copy. *Disclaimer* The information contained in this communication from the sender is confidential. It is intended solely for use by the recipient and others authorized to receive it. If you are not the recipient, you are hereby notified that any disclosure, copying, distribution or taking action in relation of the contents of this information is strictly prohibited and may be unlawful. This email has been scanned for viruses and malware, and may have been automatically archived by *Mimecast Ltd*, an innovator in Software as a Service (SaaS) for business. Providing a *safer* and *more useful* place for your human generated data. Specializing in; Security, archiving and compliance. To find out more Click Here <http://www.mimecast.com/products/>.

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Recordings, DAIRs, Raw Caption Notes for Jurisdiction Subgroup Meeting #57 | 28 February 2018
by MSSI Secretariat Feb. 28, 2018

Feb. 28, 2018

Hello all, Please find the recordings, Decisions, Action Items, Requests (DAIRs), and raw caption notes for CCWG Accountability WS2 Jurisdiction Subgroup Meeting #57 – 28 February 2018 posted at https://community.icann.org/x/vhK8B 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@01D3B0B1.56B81180] Action Items: none 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/79434430/CCWG-Accountabili…> * PDF<https://community.icann.org/download/attachments/79434430/CCWG-Accountabili…> Decisions: * Note 1 * Revised text added and moved to footnote, stating “In the future, if ICANN is subject to other similar sanctions (e.g., similar in scope, type and effect and with similar methods of relief for entities not specifically sanctioned), the spirit of these recommendations should guide ICANN’s approach.” * Friendly amendment - Instead of saying "if ICANN is subject to similar sanctions", I believe it would be more appropriate to say "if ICANN's activities are affected by similar sanctions”. * Agreed with friendly amendment * Note 2 * The Report has been changed to recommend that the Registry (or Registrar) choose from among the choice of law options on the “menu,” i.e., the choice would not be negotiated with ICANN. * Agreed * Note 3 * This is a general note that section describing the work of the Subgroup after the draft was submitted to the plenary for the Abu Dhabi meeting has now been “accepted” into the document. * Agreed * Note 4 * In the “Overview of the Work of the Subgroup,” the following has been added: * As a result of these discussions [in Abu Dhabi], the section “Further Discussions of Jurisdiction-Related Concerns” was added the draft Report, suggesting a path forward for these concerns beyond the CCWG-Accountability through a further other multistakeholder process. * Agreed as amended in meeting per Thiago and Greg suggestions. * Note 4.1 * This suggestion has evolved somewhat. Thiago earlier suggested that “Comments by other countries in support for the further jurisdiction-related discussions, in particular immunities, should be specifically referenced." * After further discussion, Thiago’s revised suggestion appears to be: * Comments by other countries in support for the further jurisdiction-related discussions, in particular immunities, should be specifically referenced. * it would be fair to also explicitly give similar satisfaction to the contrary voices * These are not really contrary to Brazil’s dissent, which should be made explicit in the report as part of the subgroup’s response to the comments received.” No change has been made to the Report based on this Note, as it is unclear what the level of support for this plan. The Subgroup needs to determine if this addition should be made and if so, how. * Concept agreement to some new words which will be suggested by GS. · Note 5 * This text is proposed to be added at the end of the recommendations on sanctions: * When implementing each of the recommendations in this section, their utmost importance to ICANN in carrying out its mission and facilitating global access to DNS should be considered. Taking into account this importance, the implementation phase should start as soon as possible, but in no event later than six months after approval by the ICANN Board.” * Agreed · Note 6 * This is a general note that the Stress Tests have now been “accepted” into the Report document. * Agreed. · Note 7 * A “friendly amendment” was made on last week’s call to Stress Test 1 in “Proposed Accountability Measures,” to clarify that any registrar’s ability to “accept domain registration requests from citizens of any country” is still “subject to limitations and obligations due to applicable law and registry restrictions.” * Agreed without “and registry restrictions”. Requests: * GS will circulate draft final to list by 1800 UTC today and comments need to be provided ASAP as the deadline for submitting the final recommendations is Friday 2 March 2359 UTC.

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Latest Revised Draft of Jurisdiction Subgroup Report
by Greg Shatan Feb. 28, 2018

Feb. 28, 2018

All: Attached is a further revised version of the Jurisdiction subgroup report, in both Word and PDF. This draft is also available on Google Docs at https://docs.google.com/document/d/1rdMJyvZdyN9TApT6gx_3NwpdvIL7YKHEUD7tNfL… This latest draft reflects changes made over the course of the day, primarily: *NOTE 2:* This has been revised so that the Report recommends that the Registry (or Registrar) choose from among the choice of law options on the “menu,” i.e., the choice would not be negotiated with the ICANN. This is opposite to the way this issue was presented in the immediate prior draft. *NOTE 4:* In the “Overview of the Work of the Subgroup,” the following has been added, in response to Thiago’s suggestion: As a result of these discussions [in Abu Dhabi], the section “Further Discussions of Jurisdiction-Related Concerns” was added the draft Report, suggesting a path forward for these concerns beyond the CCWG-Accountability through a further other multistakeholder process. *NOTE 4.1:* Thiago has since clarified that his suggestion is that “Comments by other countries [not just France] in support for the further jurisdiction-related discussions, in particular immunities, should be specifically referenced." Steve Delbianco, responding to the earlier formulation, stated: “I do not understand the justification to single-out one comment (that of France) among so many that we received and considered. Pending an explanation of that justification, I would not support a note that calls attention to just one comment.” Thiago, then replied: “On Note 4, it is a fair point, and I do not wish to push it further. My main point was as I clarified, to add text reflecting the subsequent addition to the report of the “further discussions on jurisdiction-related concerns”, and not so much concerned with singling out any of the comments received. So, again, what appears as Note 4 is distinct and independent from what appears as Note 4.1. Yet I would only suggest dropping point 4.1 if others believe that the report, as slightly revised in reaction to the public comments received, did respond at least in some fashion to the comments that joined their voices to Brazil’s dissent in asking for further discussions to take place, notably on immunity. This not being the case, I do believe – as Greg suggested – it would be fair to also explicitly give similar satisfaction to the contrary voices, which however, as I clarified in our previous call, are not really contrary to Brazil’s dissent, which fact should in my view be made explicit in the report as part of the subgroup’s response to the comments received.” I should clarify that my suggestion (as noted above by Thiago) does not imply that I support that particular outcome. *NOTE 6.1: *A “friendly amendment” was made on last week’s call to Stress Test 1 in “Proposed Accountability Measures,” to clarify that any registrar’s ability to “accept domain registration requests from citizens of any country” is still “subject to limitations and obligations due to applicable law and registry restrictions.” The other points remain unchanged from when this draft was circulated at roughly 06:00 UTC this morning/last night. I will circulate an Agenda and list of the “NOTES” shortly. Greg

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PDF Copy of Agenda
by Greg Shatan Feb. 28, 2018

Feb. 28, 2018

PDF of Agenda attached. Greg

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Agenda for 28 February Jurisdiction Subgroup Meeting
by Greg Shatan Feb. 28, 2018

Feb. 28, 2018

All, Attached is the agenda for the upcoming Subgroup meeting. PDF version to follow. I look forward to our call. Greg

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Fwd: Table of Proposed Changes in Feb 27 Jurisdiction Report
by Greg Shatan Feb. 28, 2018

Feb. 28, 2018

---------- Forwarded message --------- From: Gregory S. Shatan <gshatan(a)mosessinger.com> Date: Tue, Feb 27, 2018 at 8:24 PM Subject: Table of Proposed Changes in Feb 27 Jurisdiction Report To: gregshatanipc(a)gmail.com <gregshatanipc(a)gmail.com> All, Attached is a table in Word and PDF that sets out the proposed changes in this version of the Report. (It’s the same document even though the titles are slightly different). Greg _________________________________________________________________ This message is being sent from a Law Firm and may contain CONFIDENTIAL or PRIVILEGED information. If you are not the intended recipient, do not print, copy or distribute this message or any attachments. Advise the sender immediately by reply e-mail, and delete this message and attachments without retaining a copy. *Disclaimer* The information contained in this communication from the sender is confidential. It is intended solely for use by the recipient and others authorized to receive it. If you are not the recipient, you are hereby notified that any disclosure, copying, distribution or taking action in relation of the contents of this information is strictly prohibited and may be unlawful. This email has been scanned for viruses and malware, and may have been automatically archived by *Mimecast Ltd*, an innovator in Software as a Service (SaaS) for business. Providing a *safer* and *more useful* place for your human generated data. Specializing in; Security, archiving and compliance. To find out more Click Here <http://www.mimecast.com/products/>.

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FINAL DRAFT REVISED REPORT OF JURISDICTION SUBGROUP
by Greg Shatan Feb. 27, 2018

Feb. 27, 2018

All, The final draft of the revised Jurisdiction Subgroup report is attached for your review. The Google doc version is at https://docs.google.com/document/d/1rdMJyvZdyN9TApT6gx_3NwpdvIL7YKHEUD7tNfL… *PLEASE SPECIFICALLY REVIEW THE SIX "NOTES" IN THE MARGINAL COMMENTS. THESE SHOW WHERE POSSIBLE CHANGES TO THE REPORT HAVE BEEN DISCUSSED AND TENTATIVELY RESOLVED.* *PLEASE RESPOND WITH YOUR POSITION ON THESE SIX NOTES, PARTICULARLY IF YOU OBJECT TO THE RESOLUTION IN THE BODY OF THE REPORT. (Expressions of support are welcome, but not necessary. Lack of response will be interpreted as "Can live with it.")* *THIS IS PARTICULARLY IMPORTANT IF YOU WILL NOT BE ON WEDNESDAY'S CALL, SO YOUR VOICE CAN BE HEARD. The Report must be submitted to the Plenary no later than Friday, March 2 (two days after our call).* Thank you for your review. Best regards, Greg

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CCWG=Accountability-WS2-Jurisdiction-Meeting Wednesday 28 February 1300 UTC
by Bernard Turcotte Feb. 27, 2018

Feb. 27, 2018

All, This is simply a reminder that the next Jurisdiction is scheduled for Wednesday 28 February 1300 UTC. Bernard Turcotte ICANN Staff Support to the CCWG=Accountability-WS2

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Recordings, DAIRs, Raw Caption Notes for Jurisdiction Subgroup Meeting #56 | 21 February 2018
by MSSI Secretariat Feb. 21, 2018

Feb. 21, 2018

Hello all, Please find the recordings, Decisions, Action Items, Requests (DAIRs), and raw caption notes for CCWG Accountability WS2 Jurisdiction Subgroup Meeting #56 – 21 February 2018 posted at https://community.icann.org/x/UBG8B 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@01D3AB14.FB467270] Action Items: * GS to post updated document to the list ASAP. 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/79434064/CCWG-Accountabili…> * PDF<https://community.icann.org/download/attachments/79434064/CCWG-Accountabili…> Decisions: * From the OPEN ITEMS TO RESOLVE IN REVISED DRAFT REPORT document (all decisions to be confirmed on list): * 1 Best Efforts - agreed * Use BEST EFFORTS with the following footnote - The term “best efforts,” as used throughout, should be understood to be limited by “reasonableness,” meaning that an entity (here, ICANN) must use its best efforts, except for any efforts that would be unreasonable. * 2 REVISE “APPLICANT IS OTHERWISE QUALIFIED.” * No agreement GS will propose text to list. * 3 RECOMMEND A METHOD OF SELECTING FROM CHOICE OF LAW MENU – agreed * Revise menu proposal to (A) recommend that the party contracting with ICANN have the choice of jurisdictions from the menu, and to (B) remove all mentions that it could be negotiated with ICANN. * 4 SUMMARY OF WORK OF SUBGROUP BEFORE, DURING AND AFTER COMMENT PERIOD. Agreed * Suggestion by Thiago to be put to the list by GS. * 5 REVIEW PROPOSED LANGUAGE ADDED TO OFAC GENERAL LICENSE RECOMMENDATION – agreed * The utmost importance of these recommendations for ICANN to carry out its mission and facilitate the global access to DNS should be considered when implementing them. Taking into account this importance, the implementation phase should start no later than six months after approval by the ICANN Board. * 6 REVIEW AND APPROVE STRESS TESTS. Agreed with friendly amendment by D. McAuley and GS. Requests: * Given the next meeting should be last participants are urged to contribute to the list prior to the next meeting.

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ENC: Agenda Materials for Jurisdiction Subgroup Meeting 21 Feb 2018 1300 UTC
by Thiago Braz Jardim Oliveira Feb. 21, 2018

Feb. 21, 2018

It seems my email below was not delivered. De: Thiago Braz Jardim Oliveira Enviada em: quarta-feira, 21 de fevereiro de 2018 09:42 Para: Greg Shatan; ws2-jurisdiction Assunto: RES: [Ws2-jurisdiction] Agenda Materials for Jurisdiction Subgroup Meeting 21 Feb 2018 1300 UTC Dear all, On the “best efforts” discussion we will have in a bit, allow me to reproduce one or two passages below echoing the point I made in our previous call: ‘with respect to limitations on the meaning of “best efforts”, some case law [in Canada] suggests that while “best efforts” require “first class efforts”, they do not require the party making them to sacrifice its own economic interest’ … ‘The Courts [in Canada] have not yet addressed whether the addition of the word “reasonable” has any impact on the interpretation of the “best efforts” obligation. Arguably “best efforts” already incorporates an element of “reasonableness” by definition as the Courts have defined “best efforts” to mean: “taking, in good faith, all reasonable steps to achieve the objective, carrying the process to its logical conclusion and leaving no stone unturned.”’ [https://sheanerland.com/insights/best-efforts-reasonable-efforts-commercial…] I had previously found the same points in English jurisprudence, but am unable to find it again now. In any case, I concede that “best efforts” is a higher standard than “reasonable efforts” (as it probably is in relation “reasonable best efforts” too), but the higher standard that is meant by a “best efforts” obligation has already embedded within it an element of “reasonableness”, and it would be a shame to limit the ambiguity (and leeway to abide by a higher or lower standard) that already exists in the expression, by adding “reasonable” to it”, which would come at the price of turning our call upon ICANN to obtain general licenses to OFAC even softer than it already is… Best regards, Thiago De: Ws2-jurisdiction [mailto:ws2-jurisdiction-bounces@icann.org] Em nome de Greg Shatan Enviada em: terça-feira, 20 de fevereiro de 2018 22:10 Para: ws2-jurisdiction Assunto: [Ws2-jurisdiction] Agenda Materials for Jurisdiction Subgroup Meeting 21 Feb 2018 1300 UTC All, Attached are the Agenda, Draft Report and a document showing the open items we must resolve in the revised draft Report. I look forward to our call. Greg

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