- Ws2-jurisdiction - lists.icann.org

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

Two litigation reviews
by McAuley, David March 3, 2017

March 3, 2017

Seeing Mathieu's mail just now reminded me that I was to send my litigation reviews (2 so far) to list. Attached are two reviews in one document - DCA v. ICANN (Trial court) and DCA v. ICANN (Appellate Court). Best regards David David McAuley International Policy Manager Verisign Inc. 703-948-4154

2 2

CCWG-Accountability Jurisdiction Subgroup Questions for ICANN Legal
by Greg Shatan March 2, 2017

March 2, 2017

Co-Chairs and Fellow Participants, Attached for the appropriate review and submission to ICANN Legal are several questions from the Jurisdiction Subgroup. Please let us know if there are any questions or concern before these are sent to ICANN Legal. When these are submitted to ICANN Legal, please ask for an estimate of the time to return answers, and advise them that they may respond on a rolling basis, if that will allow us to receive certain answers more quickly. For convenience, a link to a Google Doc version is also included: https://docs.google.com/document/d/1HslgBieiTl2LNT1CXNct7ZS1Qi5lZy3r8Y42CVz… Thank you. Greg Shatan *Rapporteur* *Greg Shatan *C: 917-816-6428 S: gsshatan Phone-to-Skype: 646-845-9428 gregshatanipc(a)gmail.com

3 2

Notes, recordings and transcript for WS2 Jurisdiction Subgroup Meeting # 22 | 1 March 2017
by MSSI Secretariat March 2, 2017

March 2, 2017

Hello all, The notes, recordings and transcripts for CCWG Accountability WS2 Jurisdiction Subgroup Meeting #22 – 21 March 2017 will be available here: https://community.icann.org/x/CKPRAw 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@01D292D8.89D1E070] Action Items: · Rapporteur to announce RT to the list and solicit additional members from the sub-team participants. · Staff to organize and ad-hoc meeting of those members of the RT who will be present at ICANN58 while they are in Copenhagen. · Rapporteur to communicate sign-up sheet to sub-group list and solicit volunteers to sign-up to review cases. · Mathieu Weill to review the Pool.com<http://pool.com/> v. ICANN case · Vidushi Marda to review the Ruby Glen v. ICANN case · Avri Doria to review Auebach v. ICANN case. · Staff to update the sing-up sheet for these cases (completed) · Kavouss Arasteh will provide his comments on the form to the list this week. · Greg Shatan will review the evaluation form per the discussion today for the next meeting of the sub-group. Notes (including relevant parts of the chat): 15 participants at start of call 1. Welcome 2. Review of Agenda Greg Shatan - any modifications? (none). Kavouss Arasteh (15 minutes into the call) - lodging complaint about trouble being completed. Also, please speak slowly. Cheryl Langdon-Orr (CLO): I was only just connected to audio/phone as well Kavouss there were obviously complications 3. Administration (5 minutes) 3.1. Questions to ICANN Legal – Status of Legal Committee Greg Shatan - Leon Sanchez has forwarded our questions to CCWG-Acct Legal comm. 3.2. Hypotheticals document – Propose suspending the work until ICANN Legal responds to the questions. Parminder - this is a slightly different than what has been asked but they may be sequential. Greg Shatan - any other comments? (none). Documents will remain open for comments and people can contribute to them in the meantime we take them up again as a group. Any objection? (none). David McAuley (RySG): support that Greg Decision: The sub-group will suspend work on the Hypotheticals Document as a group. The document will remain open to individual contributions until the document returns to the sub-group for consideration. 3.3. “Influence of ICANN’s Existing Jurisdiction” document – Propose suspending the work until this group completes the review of ICANN’s past and current litigation which will inform the development of that document. Parminder - similar nature to my comment on 3.2. Would ask to keep this document open since review of litigation is not all the information for this document. Greg Shatan - Agree with Parminder and as per previous point the document will remain open for comments. Any objections? (none). Decision: The sub-group will suspend work on the Influence of ICANN’s Existing Jurisdiction document as a group. The document will remain open to individual contributions until the document returns to the sub-group for consideration. 4. Questionnaire Update (20 minutes) 4.1. Method for processing responses 4.1.1. Rolling review of responses – Propose new responses to the questionnaire to be reviewed by the Jurisdiction sub-group at each meeting. Greg Shatan - Any objections (none). Parminder - Responses will be available to the sub-group. Greg Shatan – yes – they are posted on the Jurisdiction wiki as they come in. Decision: The sub-group will review all new responses to its questionnaire at each of its meetings. 4.1.2. Proposal for a review team – Propose review team will be responsible for updating the sub-group 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. Greg Shatan - presentation of general expectations of review team. Kavouss Arasteh - Is sound ok now? suggest review team and evaluation team are separate but they should be balanced from all SOACs. Greg Shatan - Only one team. In terms of balance hoping we get volunteers from all groups. Mathieu Weill: Happy to help Mathieu Weill: Also, please all consider doing outreach about the questionnaire in your respective groups Greg Shatan - any objections? (none). David McAuley (RySG): sorry, let's label the RT as a pilot - the job might eat up the team's time so let's make it easy for them to seek relief. Greg Shatan - Good suggestion DM. Kavouss Arasteh: Blanced team Decision: The sub-group will have a review team composed of participants of the Jurisdiction sub-group. This will be a pilot project for the moment and membership in the RT will remain open for the moment. The team, subject to sub-group approval, will be responsible for looking at all the responses to the questionnaire, analyzing these, presenting these to the sub-group at its meetings, evolving the tracking tool and developing analysis criteria for the responses. 4.1.3. Selection of the review team Greg Shatan - Volunteers? MW, Parminder, DM, KA, VMarda. Thank you. David McAuley (RySG): If these volunteers plan to be in Copenhagen maybe we can meet briefly. Action Item – staff to try to organize an informal meeting of the RT in Copenhagen. Mathieu Weill: +1 david. Good idea Kavouss Arasteh: May I propose that Mathieu coordinating the wroks of the team Mathieu Weill: Kavouss : thanks but that might be beyond my abilities And not very good to have too many hats Kavouss Arasteh: I do not thing any one oppose to my suggestion provided that mMathieu kindly agrees to that. Decision: Initial members of the RT will be Mathieu Weill, Parminder, David McAuley, Vidushi Marda. Action Items: · Rapporteur to announce RT to the list and solicit additional members from the sub-team participants. · Staff to organize and ad-hoc meeting of those members of the RT who will be present at ICANN58 while they are in Copenhagen. 4.2. Review of current responses in tool (document). Greg Shatan - Review of tool Kavouss Arasteh - Is there any threshold to make this valid? Greg Shatan - Good topic for the Review Team. We will also review these responses individually - this is not about voting - its more an information gathering process. Kavouss Arasteh - need wide representation on responses. Greg Shatan - depends on who responds. Any comments on the tool itself or the comments received to date? Kavouss Arasteh - deadline is 17 April - I wish to include the source of the information.and we should not forget the views of the minority. Greg Shatan - Reminder this is a questionnaire and not a survey - sources can be added - all of this is really details for the Review Team. Kavouss Arasteh - Source is important. David McAuley (RySG): good point, @Kavouss - Seun Ojedeji: I agree with Kavouss Greg Shatan - For the review team to consider. We need to give each response its due consideration to find facts - this what the questionnaire is about. David McAuley (RySG): Agree to let RT grapple with this first 5. Review of ICANN’s Past and Current Litigation (30 minutes) 5.1. Review of Sign-up sheet (document) Mathieu Weill: I'll look at Pool.com<http://pool.com/> (the only one in front of a non US court) Vidushi Marda: i can look at ruby glen Kavouss Arasteh - Please send a request on the list to get volunteers and give a week. Parminder may wish to volunteer for some. Greg Shatan - Good suggestion avri doria: i'll volunteer for Auerbach vs ICANN David McAuley (RySG): those picking cases here please be sure to put name in tool - so others don't duplicate work avri doria: what is the url for this sheet? Mathieu Weill: https://docs.google.com/document/d/1oo9oDJuuxFz1UUNaBfHeor7HPhJ5XcRHFTq3hjR… Action Items: · Rapporteur to communicate sign-up sheet to sub-group list and solicit volunteers to sign-up to review cases. · Mathieu Weill to review the Pool.com<http://pool.com/> v. ICANN case · Vidushi Marda to review the Ruby Glen v. ICANN case · Avri Doria to review Auebach v. ICANN case. · Staff to update the sing-up sheet for these cases. 5.2. Verisign, Inc. v. ICANN V2 – MW (document) Mathieu Weill: Was not really sure of choice of law / governing law so might need to add Parminder - It would be interesting on these cases if they are a matter of facts or principles - given we are considering jurisdiction vs ICANN policies. David McAuley (RySG): if we add to the form lets please write down what we are adding so reviewers are not guessing Greg Shatan - Good suggestion - under outcome. Lets also note if the court considered jurisdiction. Action Item: Will review the form. David McAuley (RySG): courts always "discuss" JX just to say they have it. Parminder: it is significant that court asserts jurisdiction, and full jurisdiction on different icann policy issues Philip Corwin: This is the litigation that ended with what was then the very controversial .com settlement Mathieu Weill - we need to make all the questions in the form crystal clear. Greg Shatan - Good suggestion. Kavouss Arasteh - I will have suggestions for this form. Two different type of judgements etc. Greg Shatan - Godd suggestion - please provide input on list. We have run out of time and will adjourn. Action Items: · Kavouss Arasteh will provide his comments on the form to the list this week. · Greg Shatan will review the evaluation form per the discussion today for the next meeting of the sub-group. Summary of Decisions and Action Items: Decisions: · The sub-group will suspend work on the Hypotheticals Document as a group. The document will remain open to individual contributions until the document returns to the sub-group for consideration. · The sub-group will suspend work on the Influence of ICANN’s Existing Jurisdiction document as a group. The document will remain open to individual contributions until the document returns to the sub-group for consideration. · The sub-group will review all new responses to its questionnaire at each of its meetings. · The sub-group will have a review team composed of participants of the Jurisdiction sub-group. This will be a pilot project for the moment and membership in the RT will remain open for the moment. The team, subject to sub-group approval, will be responsible for looking at all the responses to the questionnaire, analyzing these, presenting these to the sub-group at its meetings, evolving the tracking tool and developing analysis criteria for the responses. · Initial members of the RT will be Mathieu Weill, Parminder, David McAuley, Vidushi Marda. Action Items: · Rapporteur to announce RT to the list and solicit additional members from the sub-team participants. · Staff to organize and ad-hoc meeting of those members of the RT who will be present at ICANN58 while they are in Copenhagen. · Rapporteur to communicate sign-up sheet to sub-group list and solicit volunteers to sign-up to review cases. · Mathieu Weill to review the Pool.com<http://pool.com/> v. ICANN case · Vidushi Marda to review the Ruby Glen v. ICANN case · Avri Doria to review Auebach v. ICANN case. · Staff to update the sing-up sheet for these cases (completed) · Kavouss Arasteh will provide his comments on the form to the list this week. · Greg Shatan will review the evaluation form per the discussion today for the next meeting of the sub-group.

1 0

[Ws2-jurisdiction] CCWG-Accountability-WS2-Jurisdiction-Meeting-20170301 Agenda and Materials
by Bernard Turcotte Feb. 28, 2017

Feb. 28, 2017

All, The next meeting of the Jurisdiction sub-group will be 1 March 1300UTC. Please find below and attached the agenda for the meeting. Related materials are also attached. Please read the case summaries and be prepared to discuss these at the meeting as these are central to our current work. There are 5 of these (thanks to Mathieu Weill and David McAuley for these) but they are only 1 pagers. Looking forward to our call. Bernard Turcotte ICANN Staff Support to the CCWG-Accountability-WS2 for Greg Shatan - Rapporteur Jurisdiction Sub-Group =============== CCWG-Accountability Work Stream 2 Jurisdiction Subgroup, Meeting #22 March 1, 2017, 13:00 UTC AGENDA 1. Welcome 2. Review of Agenda 3. Administration (5 minutes) 3.1. Questions to ICANN Legal – Status of Legal Committee 3.2. Hypotheticals document – Propose suspending the work until ICANN Legal responds to the questions. 3.3. “Influence of ICANN’s Existing Jurisdiction” document – Propose suspending the work until this group completes the review of ICANN’s past and current litigation which will inform the development of that document. 4. Questionnaire Update (20 minutes) 4.1. Method for processing responses 4.1.1. Rolling review of responses – Propose new responses to the questionnaire to be reviewed by the Jurisdiction sub-group at each meeting. 4.1.2. Proposal for a review team – Propose review team will be responsible for updating the sub-group 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. 4.1.3. Selection of the review team 4.2. Review of current responses in tool (document) 5. Review of ICANN’s Past and Current Litigation (30 minutes) 5.1. Review of Sign-up sheet (document) 5.2. Verisign, Inc. v. ICANN V2 – MW (document) 5.3. State of Arizona vs NTIA V2 - MW (document) 5.4. Ben Haim v. Iran…. – MW (document) 5.5. DCA v. ICANN - DM (document) 5.6. DCA V. ICANN – Appellate Court - DM (document) 5.7. Review of summary sheet template (document) 6. AOB

2 1