- Ws2-jurisdiction - lists.icann.org

Revised Litigation Summary Sheet; Reminder to Sign Up and Review Cases
by Greg Shatan Feb. 28, 2017

Feb. 28, 2017

All (but particularly those who have signed up to review ICANN's litigations): I have revised the summary sheet as per prior discussions. Copies are attached and available as a Google doc at https://docs.google.com/document/d/1efkQOvSwW-2m1T_u6anFMVUeiHoO6P4PR3-0mWl… The sign up sheet is still at https://docs.google.com/document/d/1oo9oDJuuxFz1UUNaBfHeor7HPhJ5XcRHFTq3hjR… Plenty of good cases left! Sign up today!! Thanks, Greg *Greg Shatan *C: 917-816-6428 S: gsshatan Phone-to-Skype: 646-845-9428 gregshatanipc(a)gmail.com

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Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction
by Seun Ojedeji Feb. 27, 2017

Feb. 27, 2017

On Feb 25, 2017 5:21 AM, "parminder" <parminder(a)itforchange.net> wrote: Becky, thanks for your response and please see inline. Absent the statutory grant of authority found in California law (and the laws of other jurisdictions no doubt), the community powers are likely not enforceable. As argued in my previous email, based on an legal memo attached to an ICANN report, it is evident that ICANN can waive immunity with regard to operation of relevant California non profit law required for its accountability mechanism. I am happy to seek legal advice on this point. But from what looks apparent now, your above statement may not hold true. SO: FWIW, Can we then derive a question from this for the legal to answer? I think it may be better we have something officially/formerly documented with regards to this, otherwise we will just keep coming back to it everytime. It will be good to be able to provide documentation is future to show that it's a matter that has been discussed and brought to a "consensus based" conclusion. Regards I am also confused about how one would reconcile the privileges and immunity approach with deliberately chosen language in the Bylaws. Under the US International Organizations Immunities Act, ICANN would first have to be an “international organization” as defined in the Act thus: For the purposes of this subchapter, the term “international organization” means a public international organization in which the United States participates pursuant to any treaty or under the authority of any Act of Congress authorizing such participation or making an appropriation for such participation, and which shall have been designated by the President through appropriate Executive order as being entitled to enjoy the privileges, exemptions, and immunities provided in this subchapter.” 22 U.S. Code 228. The Swiss Host State Act, 2007, has similar requirements. Yes, it needs action by both the Congress and the President of the US. The former will need to just amend some existing laws related to some international orgs and add ICANN somewhere in it. Simple work. And the President has to issue a decree under the Immunities Act. ICANN is not a treaty-based organization, This is not required. nor is it conducting work normally carried out by an intergovernmental organization. As shown by Jorge, this is not true. Turning it into a treaty-based organization No need to turn it into treaty based org to get US immunity. would seem to me to violate the Bylaws-mandated Core Value that requires ICANN to *remain rooted in the private sector*. There is a linguistic problem here. Private sector is understood differently in the US than almost everywhere else. In the US, it is just to be outside government, which ICANN is. Outside the US, it mostly mean for profit sector. ICANN is indeed outside government(s), and there is no proposal to change that. But it is also equally a non profit . That also I hope is not intended to be changed. In any case, whether non profit or for profit, everything is always subject to some kind of governmental jurisdiction. Being so subject does not change its non profit or even for profit nature. So the point is really moot. This language was contested on numerous occasions by members of the GAC, and the community repeatedly insisted on retaining this orientation. I think that there can be little argument that the community affirmatively committed to maintaining this status through the Accountability work. The community asked this group to consider the issue of US jurisdiction over ICANN. And a question can only be considered if it is open - -unless, sorry to use that word, we are all mutually and together fooling ourselves, and doing discussions that really have no meaning or purpose. I really hope this is not the case - -although, I must admit, despair often does arises that it may actually may be the case. parminder *From:* ws2-jurisdiction-bounces(a)icann.org [mailto:ws2-jurisdiction- bounces(a)icann.org <ws2-jurisdiction-bounces(a)icann.org>] *On Behalf Of *Seun Ojedeji *Sent:* Tuesday, February 14, 2017 1:43 PM *To:* Greg Shatan <gregshatanipc(a)gmail.com> <gregshatanipc(a)gmail.com> *Cc:* ws2-jurisdiction <ws2-jurisdiction(a)icann.org> <ws2-jurisdiction(a)icann.org> *Subject:* Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction Sent from my LG G4 Kindly excuse brevity and typos On Feb 14, 2017 12:29 PM, "Greg Shatan" <gregshatanipc(a)gmail.com> wrote: Seun, You say that a "Trump travel Ban . . . compared to if a travel Ban is placed on Turkey where ICANN has a hub. The former would have global effects on ICANN than the latter." Can you clarify how a travel ban into the US from a list of countries would "have global effects on ICANN" and a travel ban into Turkey from a list of countries not have a similar type of effect? Is this just because more people will want to travel to ICANN's operations in the US than those in Turkey? SO: It's not really because more people "want" to, it's because for ICANN it may be prudent at times to have the meeting in the US. When I say meeting, I am not just referring to the 3 global meetings alone. Why is it a global effect on ICANN if it only concerns a small number of countries? SO: Sometime ago I was reading an article mentioning whether I* organisations should cancel subsequent meetings in the US (even though I personally do not think it's worth it to cancel already planned Puerto Rico meeting) but imagine the global effects if such happen. Beyond that such action by US govt also cause unintended(or perhaps unnecessary) consequences/reactions. Like it won't be out of scope for an African govt who is already pissed off with .Africa[1] and second level 2 character to also indicate the ban as an exhibit to drive a point. Just checkout how many ICANN related articles that connects to the ban has been published lately so you think similar level of response would have happened globally if the travel ban happened in Turkey? I doubt. So it's not always about the few ban countries, it's about the global reaction. For clarity if ICANN were incorporated in Turkey and same banned happen, the global effect would have still be similar to that of the US at present. So the point is not that it may not have happened if ICANN was incorporated in Turkey (or Switzerland as Paul puts it) but the point is that it is unfair to say the effects to ICANN ORG/community in both scenarios is the same Regards 1. Ofcourse I recognise there is not light at the end of the tunnel. [Please note that I personally do not support the travel ban, nor do I minimize the effects it has had and continues to have on citizens of those countries.] Thanks! Greg *Greg Shatan *C: 917-816-6428 S: gsshatan Phone-to-Skype: 646-845-9428 gregshatanipc(a)gmail.com On Tue, Feb 14, 2017 at 6:17 AM, Seun Ojedeji <seun.ojedeji(a)gmail.com> wrote: Thanks Nigel, I am not asking about an overall immunity for ICANN but I am talking about specific scenario like the ones I have indicated. Maybe the right word isn't immunity. Cheers! Sent from my LG G4 Kindly excuse brevity and typos On Feb 14, 2017 11:45 AM, "Nigel Roberts" <nigel(a)channelisles.net> wrote: I think you miss the point about immunity. It's means "ICANN can do what it likes and can't be sued". On 14/02/17 09:23, Seun Ojedeji wrote: Hi, I am not a lawyer but it doesn't sound accurate to say that the effect of the country of (US) on ICANN is same with that of other countries (including the ones hosting her regional hubs) because that is what I think Paul may be implying here. As a simple example is a Trump travel Ban and the OFAC stuff compared to if a travel Ban is placed on Turkey where ICANN has a hub. The former would have global effects on ICANN than the latter. I for one would be glad if there can be immunity/exemption for ICANN(used in literary terms) in such scenarios Regards Sent from my LG G4 Kindly excuse brevity and typos On Feb 13, 2017 7:59 PM, "Paul Rosenzweig" <paul.rosenzweig(a)redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com>> wrote: Yes, I refute the proposition because it is an alternate fact. Or put another way – it is wrong.____ __ __ The true fact is simple – by virture of doing business in France, ICANN is subject to French law. France’s privacy authorities might, for example, attempt to get ICANN to follow their right to be forgotten. They would fail, I think, but that proposition is no different in kind than the idea of US antitrust jurisdiction over ICANN which will not change one iota if ICANN changes its jurisdiction of incorporation. As I have said before, the only way in which place of jurisdiction matters significantly (or to use your words is of a “different order” is regarding law relating to corporate incorporation and governance. As to that – e.g. the implementation of ICANN’s actual corporate governance – it would change significantly if ICANN moved. But, as others have also noted, the corporate law of California is vital to ICANN’s current structure.____ __ __ As for your question about my professional life it is amusing – because that is indeed what I do for a living and I have, in fact, given exactly that advice to German businesses with operations in the United States. I tell them that if they want to avoid American law (mostly law relating to cybersecurity) the only way to do so is to avoid having a business presence in the US. If they want to forgo the market completely they can do so to avoid American law. But otherwise they cannot. And, I tell them the exact same thing about French and Indian law as well. In short, I do this for a living and yes, I say exactly the same thing to paying clients.____ __ __ It is not me who is “falsifying facts” Paraminder. You are making assertions that have no actual basis in any law that I know of. Repeatedly asserting them as “facts” does not make them so____ __ __ Paul____ __ __ Paul Rosenzweig____ paul.rosenzweig(a)redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com>____ O: +1 (202) 547-0660 <%2B1%20%28202%29%20547-0660> < tel:+1%20202-547-0660 <+1%20202-547-0660>>____ M: +1 (202) 329-9650 <%2B1%20%28202%29%20329-9650> < tel:+1%20202-329-9650 <+1%20202-329-9650>>____ VOIP: +1 (202) 738-1739 <%2B1%20%28202%29%20738-1739> < tel:+1%20202-738-1739 <+1%20202-738-1739>>____ www.redbranchconsulting.com <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting…> <http://www.redbranchconsulting.com/ <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting…> >____ My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684 <https://urldefense.proofpoint.com/v2/url?u=https-3A__keys.mailvelope.com_pk…> <https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684 <https://urldefense.proofpoint.com/v2/url?u=https-3A__keys.mailvelope.com_pk…> >____ __ __ *From:*parminder [mailto:parminder@itforchange.net <mailto:parminder@itforchange.net>] *Sent:* Sunday, February 12, 2017 12:54 AM *To:* Paul Rosenzweig <paul.rosenzweig(a)redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com>>; ws2-jurisdiction(a)icann.org <mailto:ws2-jurisdiction@icann.org> *Subject:* Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction____ __ __ __ __ On Saturday 11 February 2017 10:54 PM, Paul Rosenzweig wrote:____ As we have repeatedly noted, the exact same thing is true of ICANN’s being subject to the laws of India, France and any other place it does business. ____ Paul, and you have missed the repeated response that of course this is not true (and you know it) -- the implication of jurisdiction of incorporation of a body, and its impact on its working, is of a completely different order than that of the jurisdictions where it may merely conduct some business. Do you refute this proposition? Would you in your professional life advice, say, a business incorporated in Germany but with worldwide business footprint that the application of German jurisdiction and laws on it -- and the real life implications of such application -- is more or less the same as application of jurisdiction and laws of all counties where it may conduct any business at all? I look forward to a clear and unambiguous response to this. Thanks. If indeed we are to keep falsifying such basic facts, which everyone knows well, and base our positions on that, there is no way we can go anywhere with this sub group. We may as well close it up and let the rapporteur write whatever report he may want to forward. No use wasting time here in trying to "prove" and reprove and reprove basic universally known legal and political facts. ____ Your persistence in arguing a strawman Paraminder puts me in mind of Amartya Sen.____ A perceptive book he wrote, but also speaks of Indian humility and self-deprecation... Wonder why no one ever wrote "The Hegemonic American"... parminder ____ ____ Paul Rosenzweig____ paul.rosenzweig(a)redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com>____ O: +1 (202) 547-0660 <%2B1%20%28202%29%20547-0660> < tel:+1%20202-547-0660 <+1%20202-547-0660>>____ M: +1 (202) 329-9650 <%2B1%20%28202%29%20329-9650> < tel:+1%20202-329-9650 <+1%20202-329-9650>>____ VOIP: +1 (202) 738-1739 <%2B1%20%28202%29%20738-1739> < tel:+1%20202-738-1739 <+1%20202-738-1739>>____ www.redbranchconsulting.com <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting…> <http://www.redbranchconsulting.com/ <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting…> >____ My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search= 0x9A830097CA066684 <https://urldefense.proofpoint.com/v2/url?u=https-3A__keys.mailvelope.com_pk…> <https://keys.mailvelope.com/pks/lookup?op=get&search= 0x9A830097CA066684 <https://urldefense.proofpoint.com/v2/url?u=https-3A__keys.mailvelope.com_pk…> >____ ____ *From:*ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org>] *On Behalf Of *parminder *Sent:* Saturday, February 11, 2017 8:46 AM *To:* ws2-jurisdiction(a)icann.org <mailto:ws2-jurisdiction@icann.org> *Subject:* Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction____ ____ Nigel,____ Thanks for your views. One gets faced by two kinds of arguments in favour of keeping the jurisdictional status quo -- which are mutually exclusive.____ (1) ICANN is somehow not subject to the whole range of US law and executive powers, as any other US organisations is - or at least it is somehow felt that US law and executive power will never apply itself over ICANN functioning. ____ (2) As you argue, ICANN is indeed subject to all US laws and powers, which might indeed be applied over it as necessary, but this is a good and a desirable thing. ____ As we have no move forward at all, we must do it in stages and remove some arguments off the table which we can mutually agree to be untenable. So can we now agree that the view (1) above is simply untrue and naively held by those who forward it. ____ We can now move to (2). First of all, this means that indeed US law and executive can impinge upon ICANN's policy implementation whenever it feels it valid to do so in pursuance of legitimate US public interest. Meaning, If ICANN makes a policy and does its implementation which is not in-accordance with US law or legitimate US executive will, they can "interfere" can cause those actions to be rolled back on the pain of state's coercive action. This can be for instance regarding how and what medicines and health related activities are considered ok by the concerned US regulator. (Similar examples can be thought of in practically every sector). Are you with me till here, because I think I am only making logical deduction over what you seem to agree with?____ If so, this indeed establishes as a fact that US jurisdiction can, as required, impinge upon (which seen from another vantage is same as, interfere with) ICANN policies and policy implementation.____ Which makes the entire exercise of our questionnaire seeking whether it can so happen rather needless. It of course can. ____ Lets then not argue or fight over that terrain, where we have this agreement, about how law and executive power operates vis a vis organisations subject to their jurisdiction. ____ That brings us to another terrain - that, as you argue, and others have here, that it is right, appropriate and needed that US law and legitimate executive power impinges upon ICANN functioning as and when required, becuase it is important to subject everything to the rule of law (and in your and many other people's views, ICANN can practically ONLY be subject to rule of US's law).____ I am happy to discuss this part as long as we do not keep drifting back to the earlier one whereby there really seems to be an agreement among most of us that US law and legitimate executive power can indeed impinge upon or "interfere with" ICANN's policy or policy implementation work (even if many consider such interference as being good for ICANN and public interest) . ____ > of the country of (US) on ICANN is same with that of other countries (including the ones hosting her regional hubs) because that is what I think Paul may be implying here. As a simple example is a Trump travel Ban and the OFAC stuff compared to if a travel Ban is placed on Turkey where ICANN has a hub. The former would have global effects on ICANN than the latter. I for one would be glad if there can be immunity/exemption for ICANN(used in literary terms) in such scenarios Regards Sent from my LG G4 Kindly excuse brevity and typos On Feb 13, 2017 7:59 PM, "Paul Rosenzweig" <paul.rosenzweig(a)redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com>> wrote: Yes, I refute the proposition because it is an alternate fact. Or put another way – it is wrong.____ __ __ The true fact is simple – by virture of doing business in France, ICANN is subject to French law. France’s privacy authorities might, for example, attempt to get ICANN to follow their right to be forgotten. They would fail, I think, but that proposition is no different in kind than the idea of US antitrust jurisdiction over ICANN which will not change one iota if ICANN changes its jurisdiction of incorporation. As I have said before, the only way in which place of jurisdiction matters significantly (or to use your words is of a “different order” is regarding law relating to corporate incorporation and governance. As to that – e.g. the implementation of ICANN’s actual corporate governance – it would change significantly if ICANN moved. But, as others have also noted, the corporate law of California is vital to ICANN’s current structure.____ __ __ As for your question about my professional life it is amusing – because that is indeed what I do for a living and I have, in fact, given exactly that advice to German businesses with operations in the United States. I tell them that if they want to avoid American law (mostly law relating to cybersecurity) the only way to do so is to avoid having a business presence in the US. If they want to forgo the market completely they can do so to avoid American law. But otherwise they cannot. And, I tell them the exact same thing about French and Indian law as well. In short, I do this for a living and yes, I say exactly the same thing to paying clients.____ __ __ It is not me who is “falsifying facts” Paraminder. You are making assertions that have no actual basis in any law that I know of. Repeatedly asserting them as “facts” does not make them so____ __ __ Paul____ __ __ Paul Rosenzweig____ paul.rosenzweig(a)redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com>____ O: +1 (202) 547-0660 <%2B1%20%28202%29%20547-0660> < tel:+1%20202-547-0660 <+1%20202-547-0660>>____ M: +1 (202) 329-9650 <%2B1%20%28202%29%20329-9650> < tel:+1%20202-329-9650 <+1%20202-329-9650>>____ VOIP: +1 (202) 738-1739 <%2B1%20%28202%29%20738-1739> < tel:+1%20202-738-1739 <+1%20202-738-1739>>____ www.redbranchconsulting.com <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting…> <http://www.redbranchconsulting.com/ <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting…> >____ My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684 <https://urldefense.proofpoint.com/v2/url?u=https-3A__keys.mailvelope.com_pk…> <https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684 <https://urldefense.proofpoint.com/v2/url?u=https-3A__keys.mailvelope.com_pk…> >____ __ __ *From:*parminder [mailto:parminder@itforchange.net <mailto:parminder@itforchange.net>] *Sent:* Sunday, February 12, 2017 12:54 AM *To:* Paul Rosenzweig <paul.rosenzweig(a)redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com>>; ws2-jurisdiction(a)icann.org <mailto:ws2-jurisdiction@icann.org> *Subject:* Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction____ __ __ __ __ On Saturday 11 February 2017 10:54 PM, Paul Rosenzweig wrote:____ As we have repeatedly noted, the exact same thing is true of ICANN’s being subject to the laws of India, France and any other place it does business. ____ Paul, and you have missed the repeated response that of course this is not true (and you know it) -- the implication of jurisdiction of incorporation of a body, and its impact on its working, is of a completely different order than that of the jurisdictions where it may merely conduct some business. Do you refute this proposition? Would you in your professional life advice, say, a business incorporated in Germany but with worldwide business footprint that the application of German jurisdiction and laws on it -- and the real life implications of such application -- is more or less the same as application of jurisdiction and laws of all counties where it may conduct any business at all? I look forward to a clear and unambiguous response to this. Thanks. If indeed we are to keep falsifying such basic facts, which everyone knows well, and base our positions on that, there is no way we can go anywhere with this sub group. We may as well close it up and let the rapporteur write whatever report he may want to forward. No use wasting time here in trying to "prove" and reprove and reprove basic universally known legal and political facts. ____ Your persistence in arguing a strawman Paraminder puts me in mind of Amartya Sen.____ A perceptive book he wrote, but also speaks of Indian humility and self-deprecation... Wonder why no one ever wrote "The Hegemonic American"... parminder ____ ____ Paul Rosenzweig____ paul.rosenzweig(a)redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com>____ O: +1 (202) 547-0660 <%2B1%20%28202%29%20547-0660> < tel:+1%20202-547-0660 <+1%20202-547-0660>>____ M: +1 (202) 329-9650 <%2B1%20%28202%29%20329-9650> < tel:+1%20202-329-9650 <+1%20202-329-9650>>____ VOIP: +1 (202) 738-1739 <%2B1%20%28202%29%20738-1739> < tel:+1%20202-738-1739 <+1%20202-738-1739>>____ www.redbranchconsulting.com <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting…> <http://www.redbranchconsulting.com/ <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting…> >____ My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search= 0x9A830097CA066684 <https://urldefense.proofpoint.com/v2/url?u=https-3A__keys.mailvelope.com_pk…> <https://keys.mailvelope.com/pks/lookup?op=get&search= 0x9A830097CA066684 <https://urldefense.proofpoint.com/v2/url?u=https-3A__keys.mailvelope.com_pk…> >____ ____ *From:*ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org>] *On Behalf Of *parminder *Sent:* Saturday, February 11, 2017 8:46 AM *To:* ws2-jurisdiction(a)icann.org <mailto:ws2-jurisdiction@icann.org> *Subject:* Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction____ ____ Nigel,____ Thanks for your views. One gets faced by two kinds of arguments in favour of keeping the jurisdictional status quo -- which are mutually exclusive.____ (1) ICANN is somehow not subject to the whole range of US law and executive powers, as any other US organisations is - or at least it is somehow felt that US law and executive power will never apply itself over ICANN functioning. ____ (2) As you argue, ICANN is indeed subject to all US laws and powers, which might indeed be applied over it as necessary, but this is a good and a desirable thing. ____ As we have no move forward at all, we must do it in stages and remove some arguments off the table which we can mutually agree to be untenable. So can we now agree that the view (1) above is simply untrue and naively held by those who forward it. ____ We can now move to (2). First of all, this means that indeed US law and executive can impinge upon ICANN's policy implementation whenever it feels it valid to do so in pursuance of legitimate US public interest. Meaning, If ICANN makes a policy and does its implementation which is not in-accordance with US law or legitimate US executive will, they can "interfere" can cause those actions to be rolled back on the pain of state's coercive action. This can be for instance regarding how and what medicines and health related activities are considered ok by the concerned US regulator. (Similar examples can be thought of in practically every sector). Are you with me till here, because I think I am only making logical deduction over what you seem to agree with?____ If so, this indeed establishes as a fact that US jurisdiction can, as required, impinge upon (which seen from another vantage is same as, interfere with) ICANN policies and policy implementation.____ Which makes the entire exercise of our questionnaire seeking _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction(a)icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction ...

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Notes, recordings and transcript for WS2 Jurisdiction Subgroup Meeting # 21 | 23 February 2017
by MSSI Secretariat Feb. 24, 2017

Feb. 24, 2017

Hello all, The notes, recordings and transcripts for CCWG Accountability WS2 Jurisdiction Subgroup Meeting #21 – 23 February 2017 will be available here: https://community.icann.org/x/TJDRAw A copy of the notes and action items 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) [id:image001.png@01D28DF5.EF27C2B0] Action Items: * GS to complete editing of questions for ICANN Legal and forward to CCWG-Accountability for review. Notes (including relevant parts of chat): 15 Participants at start of call – 29 at halfway mark 1. Welcome Greg Shatan: no changes to SOIs. Agenda accepted. 2. Questionnaire Update a. Method for processing responses Christopher Wilkinson - Would be useful to have staff collate and classify. Greg Shatan - Would be useful to have staff do this. 3. Scope, Timeline and Work Product of Subgroup Greg Shatan - We are late - would be good to get back on track. Will try to put together a timeline for your consideration. As to work product we have a number of documents that are all half-finished such as the Hypothetical. I am also thinking that we could possibly talk iteratively about remedies to some of the issues - i.e. the question of immunity. David McAuley - thank you for these comments. Part of our challenge is the unfortunate language on jurisdiction in Annex 12. We may need to discuss scope again. wrt hypotheticals I do not agree - it is about the future that is uncertain - best to consider past and documentd cases. wrt influence of existing jurisdcition is a task for us and we may need to look at it again. Kavouss Arasteh - (unclear on which point we are on, request clarification). Do not agree we do not look at the future we need to look at the future so disagree with DM. Jorge Cancio (GAC Switzerland): discussing scope will get us back into circles... let's wait for the feedback to the questionnaire Tatiana Tropina: discussing the scope can wait till we collect the responses, however, I agree with David re future and predictions vs. actual analysis on the basis of what already happened matthew shears: agree with David on looking at the past litigation rather than hypothetical Tatiana Tropina: Matt, yes, this might also help solving the scope problem David McAuley (RySG): Thank you Kavouss - interesting point which I will consider Gerg Shatan - past litigation analysis are necessary. Hypotheticals that are probable vs possible are probably very useful also. Jorge Cancio (GAC Switzerland): past litigation might help emerge a part of the problems of the past - but other issues may not have got to the stage of litigation and are equally relevant Tatiana Tropina: The analysis of past litigation can turn hypothetical prediction into analysis of future risks but this is rather risk assessment than hypothetical, Greg. David McAuley (RySG): I agree w/ Greg that we might compose probable hypotheticals - I just don't think we can well guess at court reactions to those Tatiana Tropina: David, +1 - we can only say if this is a serious risk or not based on our "assessment" matthew shears: past litigation should at least enable us to put more relevant parameters and better scoping possible futures Jorge Cancio (GAC Switzerland): Let us also always remember that accountability is to the global community Tatiana Tropina: Matt, yes, that's how I see it. Moreover, the future can be, er, beyond anyone's prediction. Jorge, I remember this 24/7 :-) Seun Ojedeji - re Hypotheticals if they are probably they should be looked at Greg Shatan: Hypotheticals need to be reasonable likely and reasonably clear. Kavouss Arasteh: The methodology to address the jurisdiction is totally unclear Steve DelBianco: the way we designed Stress Tests in WS1 was to propose plausible scenarios that would test the accountability structures, both existing and proposed matthew shears: if there is time perhaps we wait on legal responses and litigation findings and then revisit the hypotheticals - may help in narrowing the hypotheticals Kavouss Arasteh: It is difficult to carry out this mixed discussion. Steve DelBianco: It wasn't necessary for the scenarios to be "reasonaly likely". Only that they were plausible. 4. Review & Finalize Questions for ICANN Legal Greg Shatan - (Review of draft questions). any comments on the current version of the draft? Kavouss Arasteh - need examples for 2A. Becky Burr: Amsterdam Becky Burr: Black Knight, a contracted party, is incorporated in Ireland. Maybe should read US states and US jurisdictions other than California. For example, DC is not a state Jorge Cancio (GAC Switzerland): Puerto Rico Becky Burr: Guam, Virgin Islands, etc. David McAuley - Please ignore my latest first comment. Why at then end to ask about the choice of venue which seems to be beyond our scope Greg Shatan - these are amongst the multiple layers of jurisdiction. Kavouss Arasteh: what is meant by General Jurisdiction and Specific Jurisdiction pls give examples avri doria: aren't venue and jurisdiction related. intrinsically David McAuley (RySG): I think they are related but not the same and wonder why we ask about venue Jorge Cancio (GAC Switzerland): Venue is an element in juridiction analysis avri doria: becasue it can have a jurisdictional effect? Jorge Cancio (GAC Switzerland): it may - for some issues - e.g. for procedural rules Kavouss Arasteh - what is the difference general jurisdiction vs specific and what is proper venue. Greg Shatan: Proper venue = case can be heard there. As to jurisdiction - general jurisdiction over the entire entity and all matters vs specific which only applies to certain purposes. Any objections to sending this to the legal committee. matthew shears: Great idea Greg - lets send it on its way asap David McAuley (RySG): A US federal court could decide that an issue in front of it is under both US and French jurisdiction – and dismiss the case based on its belief that venue is proper in France. That would not destroy US jurisdiction. matthew shears: yes, lets send it on its ways asap Jorge Cancio (GAC Switzerland): I feel the answer to these questions may be helpful - although we may need to send in follow-up questions. Kavouss Arasteh - when will get an answer to this? Greg Shatan - any objections (none). DECISION: will send to Legal Committee once cleaned up per our discussions today and will ask to have an estimate time for a response from ICANN Legal. 5. Continue Work on Hypothetical #1 Greg Shatan - someone is suing ICANN because they have been harmed - they win - the court issues an order telling ICANN to do or not something (delegate or not a TLD). Steve DelBianco - when I read this it is plausible scenario. However this is not the stress test approach.Need to compare how things play out in our current jurisdiction scenario vs others. Greg Shatan - Difficult in this case. Steve DelBianco: True, Greg We made our scenarios somewhat more specific, and asked about how ICANN could be held accountable for how the corporation responded to the scenario Greg Shatan - (looking at comments in document). Kavouss Arasteh - difficult document. why we need to go so far in this straw man? Greg Shatan - Just showing the options and that a decision is rarely final - things can be appealed - we have left out the issue of settlement. this does not refer to a specific law. Jorge Cancio (GAC Switzerland): the more you go into details, the more differences we would see. Kavouss Arasteh: It is very difficult to digest this complex hypothesis Greg Shatan - please continue to work on the document. Jorge Cancio (GAC Switzerland): Steve's point made sense - if we want to stress test the current jurisdictions - but maybe at a later stage when we get ICANN Legals answer and the answers to the questionnaire 6. Small Group Review of ICANN’s Past and Current Litigation Greg Shatan - we need to get this done please sign up and analyze a case. 7. Adjourned Decisions: * GS to forward questions for ICANN Legal to CCWG-Accountability Legal Committee after editing per discussion at this meeting. Action Items: * GS to complete editing of questions for ICANN Legal and forward to CCWG-Accountability for review.

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Jurisdiction-Questionnaire-Responses - Invitation to view
by Bernard Turcotte (via Google Sheets) Feb. 23, 2017

Feb. 23, 2017

I've shared an item with you: Jurisdiction-Questionnaire-Responses https://docs.google.com/spreadsheets/d/1DIqP2ijBwzqvRJUoP8ElfJVXCsbGiELTyWf… It's not an attachment -- it's stored online. To open this item, just click the link above. Summary spreadsheet of responses to questionnaire - if you cannot access google docs please advise.

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Agenda for Today's Meeting at 19:00 UTC
by Greg Shatan Feb. 23, 2017

Feb. 23, 2017

All, Here is the agenda for today's meeting. Word and PDF versions of Google Drive documents will follow shortly. Links to the Google Drive documents are in the agenda. Greg *Greg Shatan *C: 917-816-6428 S: gsshatan Phone-to-Skype: 646-845-9428 gregshatanipc(a)gmail.com

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Re: [Ws2-jurisdiction] Agenda for Today's Meeting at 19:00 UTC
by Mathieu Weill Feb. 23, 2017

Feb. 23, 2017

Please note my apologies for this call. Mathieu Weill --------------- Depuis mon mobile, désolé pour le style > Le 23 févr. 2017 à 18:38, Greg Shatan <gregshatanipc(a)gmail.com> a écrit : > > All, > > Here is the agenda for today's meeting. Word and PDF versions of Google Drive documents will follow shortly. Links to the Google Drive documents are in the agenda. > > Greg > Greg Shatan > C: 917-816-6428 > S: gsshatan > Phone-to-Skype: 646-845-9428 > gregshatanipc(a)gmail.com > > > <Jurisdiction Meeting #21 Agenda.docx> > <Jurisdiction Meeting #21 Agenda.pdf> > _______________________________________________ > Ws2-jurisdiction mailing list > Ws2-jurisdiction(a)icann.org > https://mm.icann.org/mailman/listinfo/ws2-jurisdiction

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Questions based on Parminder's statements in the last meeting about GAC participation
by Greg Shatan Feb. 22, 2017

Feb. 22, 2017

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 <(917)%20816-6428> S: gsshatan Phone-to-Skype: 646-845-9428 <(646)%20845-9428> gregshatanipc(a)gmail.com

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Revised Questions for ICANN Legal
by Greg Shatan Feb. 22, 2017

Feb. 22, 2017

All, Here is a revised version of the questions for ICANN legal, with the previous changes accepted and new changes based on our last call shown in track changes. Please reply if you have any questions or comments, or if you believe these are now ready to forward to the CCWG's legal committee. Thanks! Greg *Greg Shatan *C: 917-816-6428 S: gsshatan Phone-to-Skype: 646-845-9428 gregshatanipc(a)gmail.com

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Jurisdiction on an existing Obstacle
by Kavouss Arasteh Feb. 11, 2017

Feb. 11, 2017

*Dear Greg* *As raised in todays's meeting * *To become ICANN Accredited Registrar, all registrars need to sign a contract with ICANN and ICANN should applies some criteria before accepting the registrar. ICANN is a US Entity and can't get involved into any contract with the **people of * * some countries This means having an Accredited Registrar for .com and .net and many more gTLDS in those countries is almost impossible. The is business blocker.This is an important issue to be carefully examined and resolve.The question is whether after the transition, still ICANN refrain to sign the contract in question ,if no where that is reflected and if yes, what solution is available to remove such discrimination .RegardsKavouss *

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Notes, recordings and transcript for WS2 Jurisdiction Subgroup Meeting # 20 | 9 February 2017
by MSSI Secretariat Feb. 10, 2017

Feb. 10, 2017

Hello all, The notes, recordings and transcripts for CCWG Accountability WS2 Jurisdiction Subgroup Meeting #20 – 9 February 2017 will be available here: https://community.icann.org/x/SpDRAw A copy of the notes and action items may be found below. Thank you. With kind regards, Brenda Brewer MSSI Projects & Operations Assistant ICANN - Internet Corporation for Assigned Names and Numbers Notes: (Including relevant portions of chat): 17 participants at start of call 1. Welcome Greg Shatan: No audio only, no changes to SOIs. 2. Questionnaire Greg Shatan: questionnaire has been translated into the ICANN languages and should be posted today. We will need to develop a methodology for analyzing responses. 3. Hypothetical #1 a. https://docs.google.com/document/d/1W3U9-NnmO2Kk3d_qd4ApMcDKf5VcBMf93An6zg2… Greg Shatan: hope everyone will participate in this exercise. Any comments. Parminder: The critical part of this is the court that orders ICANN to change things - what happens then? this is different depending on where - jurisdiction of inc., presence or none. We should therefore split into three streams. We need not to go too much at positive results - we need to focus on issues. Greg Shatan: seem to be prejudging the ICANN legal answer - uncertain I agree with this. David McAuley: Hypothetical is about forecasting the future - the one thing we are more certain about is US jurisdiction given 19 years of experience. As such would focus on jurisdiction of disputes as per request of WS2. Avri Doria: seems early to make the judgement of satisfactory. quite possibly true, but early to come to a conclusion. Greg Shatan: revue of actual litigation may help with this. The notion that ICANN can only sued under specific circumstances seems counter intuitive to me. matthew shears: the review of existing cases should act as the reality check on the hypothetical Avri Doria: ah satisfactory for ICANN? or for the other litigants? David McAuley: What I meant Avri was that it seems satisfactory for the ability to maintain litigation, not outcome oriented Avri Doria: my comment applies to that David McAuley: OK, thanks, i read it differently then Avri Doria: people force litigation into courts that are advantageous to themselves if they can. Paul McGrady: This hypothetical is based on notion that ICANN is an international governance body - there are no documents confirming this - it is a California corp. period. We need to clean this up significantly. Greg Shatan: Note that this is Google doc and would invite everyone to participate - so over to you PM. Paul McGrady: uncertain I want to edit this bullet which says ICANN is above the law. Greg Shatan: Good point. but need consensus from the group on if it should be in or not. Phil Corwin: Want to comment on same points as PM - most of of page1 and page 2 should struck as it overstates ICANN's role. ICANN can be sued in any number of countries - the final assertion makes no sense vs Human Rights. matthew shears: I share Phil's concerns David McAuley: Agree w/point Phil making that ICANN needs to be subject to Jx somewhere(s) Parminder: My entire engagement in ICANN and in this group is because I think ICANN is an international governance body. or a body with a global governance function and a lot of people are here because of that (governance function) and GAC members are not interested to advise a US non-profit. The fact that ICANN is a US non-profit is an anomaly and not its global governance status and is not of primary importance. I agree with PC that law is important - but only democratic law. US law is made by Americans and as such is an anomaly and is not a democratic law for an international governance body suchas ICANN – this, for me, is the core of the issue for the jurisdiction group. Erich Schweighofer: ICANN has a global public function but based on California law. Can work very well - see the example of the International Red Cross Committee. Erich Schweighofer: States have to accept this role, then everything will be fine. Erich Schweighofer: If not - another solution is required. Jorge Cancio (GAC Switzerland): Erich: the ICRC has a specific status... quite different... Erich Schweighofer: I know - under Swiss law. Jorge Cancio (GAC Switzerland): not only Wale Bakare: Yes, @Paul. I don't think we can completely move away from that Erich Schweighofer: Internationally - not so much; Geneva Convention and a lot of customary international law. Jorge Cancio (GAC Switzerland): that's quite a lot... Parminder: Yes, i will like to know if GAC members do not consider ICANN primarily as a global governance body Erich Schweighofer: States must accept the special role of IcANN, that is decisive. Avri Doria: i though he said they do, but he doesn't Parminder: greg, you are mis representing my question Erich Schweighofer: Subject to court's interference can be horrible. avri doria: not what i heard Jorge Cancio (GAC Switzerland): strange question to GAC members... Avri Doria: not what i heard Philip Corwin: The purpose of this subgroup is to determine relevant jurisdiction questions related to ICANN's status as a non-profit California corporation, not to debate changing its corporate locus to that of another jurisdiction or to becoming an IGO on the highly questionable assertion that its private status subject to judicial restraint is a violation of human rights. matthew shears: + 1 Phil Jorge Cancio (GAC Switzerland): key is whether accountability works, and works equally for all Paul McGrady: +1 Phil. Greg Shatan: who supports Parminders position vs his participation in this. Parminder: i restated it just as i said - but greg insisted that it is not what i said avri doria: i know my particpation as an individual is becasue it is a global governance and not just becasue it is a us non profit. Parminder: greg, you are creating a controversy from where one does not exist or need not exist - but pl go ahead David McAuley: While I continue to believe the hypothetical will prove unhelpful, I agree w/Phil's point that the language he noted should be stricken if we do use the hypothetical avri doria: how many of us are here because ICANN is a cool Us non profit. Parminder: pl do then do this polling on the email - now I insist that you do it, Jorge Cancio (GAC Switzerland): repeat: key is whether accountability works, and works equally for all; and jurisdictional aspects should not tip the scale unequally for the global community Parminder: there is a human right of self determination Parminder: in UN decl of human rights, and the protocol on civil and pol rights Wale Bakare: Greg, i would suggest put the question to the subgroup mailing list for responses 4. Question for ICANN Legal Greg Shatan: Have edited for form and not substance - comments or concerns vs this version. Jorge Cancio (GAC Switzerland): Does "ICANN" in the question cover the PTI? David McAuley: Thanks for editing Greg, seems fine Parminder: There are 3 types of litigation vs where a company is incorporated, has an office or neither. Also if there is an adverse judgement in a country against ICANN what are ICANN's options would seem a necessary question. Kavouss Arasteh: I do not understand the purpose of this question? Greg Shatan: question is to establish where ICANN can be sued and we essentially have 4, incorporation, hub offices, Engagement offices and none of these. Parminder: i think ICANN can be sued anywhere if the plaintiff can show impact of ICANN's action - or a particualr action, which could be almost everywhere Kavouss Arasteh: If ICANN rejects a contract with a registry in a country non-US - Should the registry take it to a court in Califronia or in another country? Greg Shatan: not the subject of this question. where ICANN and a third party have agreed to a choice of venue then this would be enforceable. Parminder: i think Kavouss case is covered in the question - i see nowhere that the question only refers to law where "choice" is avaiable David McAuley: Agree w/Parminder - isn't the example covered in the question? Parminder: but also the kind of case Kavouss mentions - where is it maintainable, and what would be impact of judgement of a court Kavouss Arasteh: Still valid post-transition? please advise. Greg Shatan: Re JC question - we can address this - as an Affiliate = piercing the corporate veil which would probably fail - but we could ask where PTI can be sued separately - but we should ask ICANN Legal first. Kavouss Arasteh: Parminder, I do not think so. My question is a practical one that some registrar facing with now David McAuley: don't see it as a major point however David McAuley: agree w/Greg, better to ask ICANN Legal Jorge Cancio (GAC Switzerland): @Greg: thx! I guess that would be relevant, as parties may try to challenge delegations by directly suing PTI Paul McGrady: Specifications regarding specific jurisdiction (India for ICANN 55 and things related directly to this) vs general jurisdiction. So need to make these questions more precise. Kavouss Arasteh: Grec, pls kindly retain my question in your future work Greg Shatan: PM good points. Parminder: KA specific example not limited to choice of law or not. Its about wherever ICANN can be sued and as such KA's question is covered. Also agree with PM. Kavouss Arasteh: Parminder, where my case is covered? I do not see that Parminder: ok, i can see greg's point now Parminder: for cases only where parties are bound by prior choice of law David McAuley: Agree with Parminder but disagree with PM on getting more specific. Question as is is a good question. Greg Shatan: I agree that there is a distinction between lack of personal jurisdiction and lack of venue. Kavouss Arasteh: My question is valid and I do not think it is included in this question - but we will need an answer to. Parminder: i would say that a court could still apply personal jurisdiction on a registrant aggrievement case 5. Small Group Review of ICANN’s Past and Current Litigation (not discussed) 6. “Influence of ICANN’s Existing Jurisdiction” document, Section C a. https://docs.google.com/document/d/1_uxN8A5J3iaofnGlr5gYoFVKudgg_DuwDgIuyIC… (not discussed) 7. Timeline (not discussed) 8. AOB (not discussed) 9. Adjourned Documents Presented · Jurisdiction Question to ICANN Legal.pdf<https://community.icann.org/download/attachments/64065610/Jurisdiction%20Qu…> · JurisdictionHypothetical1.pdf<https://community.icann.org/download/attachments/64065610/JurisdictionHypot…>

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