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Re: [Ws2-jurisdiction] Jurisdiction Questionnaire: RESPONSE REQUESTED
by Seun Ojedeji Jan. 9, 2017

Jan. 9, 2017

Hi Greg, Kindly find inline Sent from my LG G4 Kindly excuse brevity and typos On 8 Jan 2017 7:19 a.m., "Greg Shatan" <gregshatanipc(a)gmail.com> wrote: Seun, Why do you believe that the goal of Question 4 is only to find out problems? SO: This is what I believe question 4 was about. i.e identifying problems and determing their solutions as appropriate. What's the goal then if I may ask? Also, we won't be basing our discussions solely on these responses. The responses will simply be one set of inputs to our discussion, but they will not limit our discussions. SO: Noted. I guess I will just rest my case then. You say "it's clear why we are asking for disadvantages." Can you clarify what you are thinking of as the reason(s) why we are asking for disadvantages? SO: This is based on what I understood to be the goal of question 4 as stated above. i.e I understand we are asking for disadvantages in other to identify problems. I do not understand why we are asking for advantages, could you enlighten me on that bit? Regards Thanks! Greg On Sat, Jan 7, 2017 at 3:59 PM, Seun Ojedeji <seun.ojedeji(a)gmail.com> wrote: > Hello Greg, > > Thanks for the follow-up, my reasons are quite simple: > > 1. The goal is to find out if there are indeed valid problems. Hence the > question should be framed as such > > 2. Since this is not an exercise of "advantages vs disadvantages", asking > for advantages now will not be as useful as knowing the disadvantages, > confirming they are indeed valid problems and then we criticise those > problems (including stating possible advantages we will loose if we needed > to solve the problem identifed). > > 3. We just cannot exhaust the advantages via this question and if the > responses we get is what we will be basing our discussions on then we > should not start this process on a competitive grounds. > > 4. It is not clear what exactly we intend to use the advantages for at > this initial stage but it's clear why we are asking for disadvantages. > > For clarity this is not a redline for me and I will be fine if the group > does not accept the suggestion so long as adequate reason is provided (I > note Paul opposes, will be good to read reasons). Irrespective of the > group's decision, it should be clear that the volume of advantages vis > disadvantages would not matter but the substance of the responses will be > most important. Hence I hope we will address each of the problems > identified adequately (including addressing them with points that may > exceed those in the responses). > > Regards > Sent from my LG G4 > Kindly excuse brevity and typos > > On 7 Jan 2017 8:10 p.m., "Greg Shatan" <gregshatanipc(a)gmail.com> wrote: > >> Seun, >> >> Why do you suggest removing "advantages"? >> >> Greg >> >> On Sat, Jan 7, 2017 at 1:41 PM, Seun Ojedeji <seun.ojedeji(a)gmail.com> >> wrote: >> >>> Hello Greg, >>> >>> Thanks for sending in this summary. I think the suggestion about >>> removing "advantages" will be applicable to any of the question 4 >>> alternatives. >>> >>> For instance I prefer "alternative 1" without including advantages. So I >>> suggest modifying text of "alternative 6" to the following: >>> >>> "Remove advantages from any alternative that gains more traction" >>> >>> In that case, I will choose alternative 1+6 >>> >>> Regards >>> >>> Sent from my LG G4 >>> Kindly excuse brevity and typos >>> >>> On 7 Jan 2017 7:23 p.m., "Greg Shatan" <gregshatanipc(a)gmail.com> wrote: >>> >>> All, >>> >>> We made some good progress on our call on Friday, January 6. Following >>> a wide-ranging discussion, we were able to make some headway on refining >>> the draft questionnaire. I encourage those who missed the call to review >>> the recording and notes. >>> >>> Specifically, we came to a preliminary conclusion on revising the >>> Preamble and Question 1, subject to comment on this list and a final >>> discussion on our next call (Tuesday, January 10 at 13:00). Question 2 had >>> no revisions suggested, and Question 3 had only one revision suggested. >>> >>> The Preamble and Questions 1, 2 and 3 (with the proposed revision in >>> "track changes") are in the first document below (Word and PDF documents) >>> and also in text below. *Please review this version of the Preamble >>> and Questions 1-3 and provide support (or lack of support) and/or comments >>> for this portion.* >>> >>> We also discussed several aspects of Question 4, including the purpose >>> of the question; whether the question is different in nature from Questions >>> 1-3; whether or not the question should be included in this questionnaire, >>> a subsequent questionnaire or not at all; the types of responses desired >>> (and the types expected); and the drafting of the question itself. With >>> these topics and seven drafting alternatives (and the ability to pick and >>> choose elements of those alternatives), this required more time than we had >>> left on the call. Therefore, we did not come to any preliminary >>> conclusions on Question 4. >>> >>> The drafting alternatives for Question 4 (including the current version) >>> are in the second draft document (Word and PDF). Please look at the >>> alternatives carefully, particularly if you have not supported sending >>> question 4 in its current form. * Please review the options for >>> Question 4 and respond, indicating (a) Which version(s) of Question 4 you >>> could support and which you would object to, and (b) If the answer to (a) >>> is "none," how you would change or combine one or more alternatives in >>> order to support it.* >>> >>> We will conclude this discussion on our call of January 10, so please >>> provide your thoughts and responses before then. Thank you. >>> >>> Greg >>> >>> *VERSION OF PREAMBLE AND QUESTIONS 1-3 FOR REVIEW* >>> >>> *PREAMBLE* >>> >>> The newly-adopted ICANN bylaws created several Work Stream 2 >>> accountability subgroups. One of them, the subgroup on Jurisdiction, is >>> posing the questions below for community input into the subgroup’s >>> deliberations. >>> >>> As directed by Bylaw Article 27, Section 27.1(b)(vi) >>> <https://www.icann.org/resources/pages/governance/bylaws-en/#article27> >>> and to the extent set forth in the CCWG-Accountability Final Report >>> <https://community.icann.org/pages/viewpage.action?pageId=58723827&preview=/…> >>> ,[1] the Jurisdiction subgroup is addressing jurisdiction*-related >>> questions, including how choice of jurisdiction and applicable laws for >>> dispute settlement impact ICANN's accountability and the actual operation >>> of policies. >>> >>> To help the subgroup in these endeavors we are asking you to consider >>> and respond to the following specific questions. In this regard, the >>> subgroup is asking for concrete, factual submissions (positive, negative, >>> or neutral) that will help ensure that the subgroup’s deliberations are >>> informed, fact-based, and address real issues. The subgroup is interested >>> in all types of jurisdiction-related factual experiences, not just those >>> involving actual disputes/court cases. >>> >>> *QUESTION 1* >>> >>> Has your business, your privacy or your ability to use or purchase >>> domain name-related services been affected by ICANN's jurisdiction* in any >>> way? >>> >>> If the answer is Yes, please describe specific cases, situations or >>> incidents, including the date, the parties involved, and links to any >>> relevant documents. Please note that “affected” may refer to positive >>> and/or negative effects. >>> >>> *QUESTION 2* >>> >>> Has ICANN's jurisdiction* affected any dispute resolution process or >>> litigation related to domain names you have been involved in? >>> >>> If the answer is Yes, please describe specific cases, situations or >>> incidents, including the date, the parties involved, and links to any >>> relevant documents. Please note that “affected” may refer to positive >>> and/or negative effects. >>> >>> *QUESTION 3* >>> >>> Do you have copies of and/or links to any verifiable reports of >>> experiences of other parties that would be responsive to the questions >>> above? >>> >>> If the answer is yes, please provide these copies and/or links. Please >>> provide either first-person accounts or reliable third-party accounts such >>> as news reports; please do not provide your own version of events. >>> >>> ------------------------------ >>> >>> [1] *See* CCWG-Accountability Main Report, paragraphs 6 and 234, and >>> Annex 12, paragraphs 25-31. >>> >>> * For this Questionnaire, “ICANN’s jurisdiction” refers to (a) ICANN >>> being subject to U.S. and California law as a result of its incorporation >>> and location in California, (b) ICANN being subject to the laws of any >>> other country as a result of its location within or contacts with that >>> country, or (c) any “choice of law” or venue provisions in agreements with >>> ICANN. >>> >>> _______________________________________________ >>> Ws2-jurisdiction mailing list >>> Ws2-jurisdiction(a)icann.org >>> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction >>> >>> >>> >>

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Re: [Ws2-jurisdiction] Jurisdiction Questionnaire: RESPONSE REQUESTED
by Seun Ojedeji Jan. 8, 2017

Jan. 8, 2017

It depends on what you want to achieve with the responses. If you really want to know about most irritating qualities of Seun then ask that, validate them, and then decide if it's bearable. By the way, nothing requires anyone to respond to both advantages and disadvantages. Like I said it's clear what we want to use disadvantages for, may I know what we want to use advantages for at this time? Regards PS: I am not a fan of the fact that we've started this discussion but since that is the case (and am somewhat convinced it's probably better it's done), then we should do it right and in most efficient way. Up till today, I still can't think of any current problem that would warrant change of jurisdiction. Hence I look forward to reading the disadvantages. Sent from my LG G4 Kindly excuse brevity and typos On 8 Jan 2017 12:32 a.m., "Phil Corwin" <psc(a)vlaw-dc.com> wrote: Which question do you believe would give more the more useful data: 1. Describe (name of individual)’s most endearing and most irritating qualities?, or 2. Describe (name of individual)’s most irritating qualities? The first yields a far more comprehensive and balanced response. So does asking about both advantages and disadvantages of jurisdiction. *Philip S. Corwin, Founding Principal* *Virtualaw LLC* *1155 F Street, NW* *Suite 1050* *Washington, DC 20004* *202-559-8597/Direct* *202-559-8750/Fax* *202-255-6172/Cell* *Twitter: @VlawDC* *"Luck is the residue of design" -- Branch Rickey* *From:* ws2-jurisdiction-bounces(a)icann.org [mailto:ws2-jurisdiction- bounces(a)icann.org] *On Behalf Of *Seun Ojedeji *Sent:* Saturday, January 07, 2017 4:28 PM *To:* Greg Shatan *Cc:* ws2-jurisdiction *Subject:* Re: [Ws2-jurisdiction] Jurisdiction Questionnaire: RESPONSE REQUESTED Edit: "...I note that *Phil*...." not Paul Cheers! Sent from my LG G4 Kindly excuse brevity and typos On 7 Jan 2017 9:59 p.m., "Seun Ojedeji" <seun.ojedeji(a)gmail.com> wrote: Hello Greg, Thanks for the follow-up, my reasons are quite simple: 1. The goal is to find out if there are indeed valid problems. Hence the question should be framed as such 2. Since this is not an exercise of "advantages vs disadvantages", asking for advantages now will not be as useful as knowing the disadvantages, confirming they are indeed valid problems and then we criticise those problems (including stating possible advantages we will loose if we needed to solve the problem identifed). 3. We just cannot exhaust the advantages via this question and if the responses we get is what we will be basing our discussions on then we should not start this process on a competitive grounds. 4. It is not clear what exactly we intend to use the advantages for at this initial stage but it's clear why we are asking for disadvantages. For clarity this is not a redline for me and I will be fine if the group does not accept the suggestion so long as adequate reason is provided (I note Paul opposes, will be good to read reasons). Irrespective of the group's decision, it should be clear that the volume of advantages vis disadvantages would not matter but the substance of the responses will be most important. Hence I hope we will address each of the problems identified adequately (including addressing them with points that may exceed those in the responses). Regards Sent from my LG G4 Kindly excuse brevity and typos On 7 Jan 2017 8:10 p.m., "Greg Shatan" <gregshatanipc(a)gmail.com> wrote: Seun, Why do you suggest removing "advantages"? Greg On Sat, Jan 7, 2017 at 1:41 PM, Seun Ojedeji <seun.ojedeji(a)gmail.com> wrote: Hello Greg, Thanks for sending in this summary. I think the suggestion about removing "advantages" will be applicable to any of the question 4 alternatives. For instance I prefer "alternative 1" without including advantages. So I suggest modifying text of "alternative 6" to the following: "Remove advantages from any alternative that gains more traction" In that case, I will choose alternative 1+6 Regards Sent from my LG G4 Kindly excuse brevity and typos On 7 Jan 2017 7:23 p.m., "Greg Shatan" <gregshatanipc(a)gmail.com> wrote: All, We made some good progress on our call on Friday, January 6. Following a wide-ranging discussion, we were able to make some headway on refining the draft questionnaire. I encourage those who missed the call to review the recording and notes. Specifically, we came to a preliminary conclusion on revising the Preamble and Question 1, subject to comment on this list and a final discussion on our next call (Tuesday, January 10 at 13:00). Question 2 had no revisions suggested, and Question 3 had only one revision suggested. The Preamble and Questions 1, 2 and 3 (with the proposed revision in "track changes") are in the first document below (Word and PDF documents) and also in text below. *Please review this version of the Preamble and Questions 1-3 and provide support (or lack of support) and/or comments for this portion.* We also discussed several aspects of Question 4, including the purpose of the question; whether the question is different in nature from Questions 1-3; whether or not the question should be included in this questionnaire, a subsequent questionnaire or not at all; the types of responses desired (and the types expected); and the drafting of the question itself. With these topics and seven drafting alternatives (and the ability to pick and choose elements of those alternatives), this required more time than we had left on the call. Therefore, we did not come to any preliminary conclusions on Question 4. The drafting alternatives for Question 4 (including the current version) are in the second draft document (Word and PDF). Please look at the alternatives carefully, particularly if you have not supported sending question 4 in its current form. * Please review the options for Question 4 and respond, indicating (a) Which version(s) of Question 4 you could support and which you would object to, and (b) If the answer to (a) is "none," how you would change or combine one or more alternatives in order to support it.* We will conclude this discussion on our call of January 10, so please provide your thoughts and responses before then. Thank you. Greg *VERSION OF PREAMBLE AND QUESTIONS 1-3 FOR REVIEW* *PREAMBLE* The newly-adopted ICANN bylaws created several Work Stream 2 accountability subgroups. One of them, the subgroup on Jurisdiction, is posing the questions below for community input into the subgroup’s deliberations. As directed by Bylaw Article 27, Section 27.1(b)(vi) <https://www.icann.org/resources/pages/governance/bylaws-en/#article27> and to the extent set forth in the CCWG-Accountability Final Report <https://community.icann.org/pages/viewpage.action?pageId=58723827&preview=/…> ,[1] the Jurisdiction subgroup is addressing jurisdiction*-related questions, including how choice of jurisdiction and applicable laws for dispute settlement impact ICANN's accountability and the actual operation of policies. To help the subgroup in these endeavors we are asking you to consider and respond to the following specific questions. In this regard, the subgroup is asking for concrete, factual submissions (positive, negative, or neutral) that will help ensure that the subgroup’s deliberations are informed, fact-based, and address real issues. The subgroup is interested in all types of jurisdiction-related factual experiences, not just those involving actual disputes/court cases. *QUESTION 1* Has your business, your privacy or your ability to use or purchase domain name-related services been affected by ICANN's jurisdiction* in any way? If the answer is Yes, please describe specific cases, situations or incidents, including the date, the parties involved, and links to any relevant documents. Please note that “affected” may refer to positive and/or negative effects. *QUESTION 2* Has ICANN's jurisdiction* affected any dispute resolution process or litigation related to domain names you have been involved in? If the answer is Yes, please describe specific cases, situations or incidents, including the date, the parties involved, and links to any relevant documents. Please note that “affected” may refer to positive and/or negative effects. *QUESTION 3* Do you have copies of and/or links to any verifiable reports of experiences of other parties that would be responsive to the questions above? If the answer is yes, please provide these copies and/or links. Please provide either first-person accounts or reliable third-party accounts such as news reports; please do not provide your own version of events. ------------------------------ [1] *See* CCWG-Accountability Main Report, paragraphs 6 and 234, and Annex 12, paragraphs 25-31. * For this Questionnaire, “ICANN’s jurisdiction” refers to (a) ICANN being subject to U.S. and California law as a result of its incorporation and location in California, (b) ICANN being subject to the laws of any other country as a result of its location within or contacts with that country, or (c) any “choice of law” or venue provisions in agreements with ICANN. _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction(a)icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction ------------------------------ No virus found in this message. Checked by AVG - www.avg.com <http://www.avg.com/email-signature> Version: 2016.0.7996 / Virus Database: 4749/13706 - Release Date: 01/04/17

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Notes, recordings and transcript for WS2 Jurisdiction Subgroup Meeting # 15 | 6 January
by MSSI Secretariat Jan. 6, 2017

Jan. 6, 2017

Hello all, The notes, recordings and transcripts for CCWG Accountability WS2 Jurisdiction Subgroup Meeting #15 – 6 January 2017 will be available here: https://community.icann.org/x/xaXDAw A copy of the notes 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 parts of chat): 1. Welcome Greg Shatan: Welcome. Changes to SOIs? None. JN audio only. 2. Expected Standards of Behavior Greg Shatan: (Review of standards of behaviour) Mathieu Weill: Fully support Greg. Quoting the CCWG-A Charter : All participants are expected to abide by the ICANN Expected Standards of Behavior.The co-chairs are empowered to restrict the participation of someone who seriously disrupts the working group. Generally, the participant should first be warned privately, and then warned publicly before such a restriction is put into place; in extreme circumstances, this requirement may be bypassed. This restriction is subject to the right of appeal as outlined above. David McAuley (RySG): thanks Greg atthew shears: agree Greg - thanks Philip Corwin: Thank you Mathieu for pointing out that the co-chairs possess disciplinary powers for repeated violations of the Standards as well as for disruptive behavior. Wale Bakare: I am in strong support of the Standards of Behavior. 3. Proposed Questionnaire: a. Possible Revisions to Preamble and Questions Greg Shatan: Review of Preamble - review of three options in document. CW: Preamble: I have no strong opinion, except that the preamble should be SHORT. David McAuley: I have now reservations abut the questionnaire going out at all - given the discussions of the last few weeks has convinced me about this. We should stick to dispute resolution and contracts - especially given the questionnaire is not very professional. Tatiana Tropina: I agree with David. I assume the questionnaire will go out anyway, but I fully agree with what he said. Especially because I did with legal questionnaires and I know how hard it is Kavouss Arasteh: DM needs a glass of cold water but his statement does not help - we need to move forward with the questionnaire and decide on questions at this meeting. Philip Corwin: I share David's concerns but am reserving judgment on whether the questionaire should be sent depending on how this meeting proceeds. avri doria: While i do not agree with regard to the special problem with Q4, i totally agree on there being no aspect in which this is a professional questionnaire. Can support cancellation of the questionnaire. David McAuley (RySG): +1 Phil - we must stick to facts and discard opinions matthew shears: agree focus on facts and data Tatiana Tropina: I garee that all the problems come from the Q4 and that it makes the whole exercise vulnerable and out of the group mandate. Although I am not supporting the idea of the questionnaire itself but I could have lived with 3 questions. avri doria: I also do not think that Q4 is more an opinion question thatn 1-3 are. They all rely on opinion and perspective. Tatiana Tropina: this group is already full of different opinions, we need facts. Mathieu Weill: The way we frame the question is NEVER going to prevent respondents to provide opinions. matthew shears: + 1 Tatiana David McAuley (RySG): I also think even 1-3 could simply yield opinion Steve DelBianco: The preamble is the basis to decide if we are going to seek opinions can be subjected to a campaign of opinion loading throuhg an orchestrated response campaign. If we do go forward with a questions we should only consider unique responses based on facts. Greg Shatan: Have attempted to do this in option 7. Seun Ojedeji: Even though i have concern about the exercise we are about to get into but so long as we are focusing on facts, i don't think we should be concerned about question 4 any more. and i actually think focusing on fact should be the same for all the questions. Kavouss Arasteh: Coleagues, pls kindly do not use provocative terms in your statement like manipulating Kavouss Arasteh: Milton. that is your and few others views Tatiana Tropina: but at least when we ask for facts we can stick to facts when we got responses Philip Corwin: Agree that we cannot prevent opinions being submitted in response to any question, but we can agree in advance to discard any response that is not validated by facts and data. Milton Mueller: It is emerging that the source of the problem is question 4. In response to DM I acknowledge his concern but this is not meant to be a professional survey - I repeat we need to disconnect the first 3 questions from Q4. What is preventing us from doing this. Wale Bakare: The question 3 rely more on actual facts - experiences rather than opinions. We need to be focused on mechanisms of sourcing for data, as previously analysed by @Avri last week in the mailing list. Tatiana Tropina: again, can live with 1-3. If the idea is to stick to factual analysis once we got answers matthew shears: we should be ready to discount inputs that are not substantiated with fact Steve DelBianco: @Phil -- agree, and furthermore we should consolidate responses so that we discard duplicates citing the very same facts and evidence. Jean-Jacques Subrenat: In historical context - Jurisdiction issue goes back a long way. Support MM re surveys. Finally supportoption 7 on Q4. avri doria: the fact that 1&2 only collect facts from a single perspective and not a global perspective. You need question 4 to gather facts from the broader perspective. Tatiana Tropina: Matthew, yes. This is the thing. And this shall be determined before the questionnaire is sent. That once the answers come back only those with factual substance would be analyzed Greg Shatan: Matthew, that is the goal of this discussion. Philip Corwin: @Steve--and I agree with your point Milton: Avri, yes, perhaps we need to discuss the broader perspective, as you know i support that. But the framing of the question is very controversial and it has stalled everything Christopher Wilkinson: Agree with MM on first 3 questions. We will end up with a version of q4 one way or another - but would agree it could be done separately. Do not agree about the risk of a campaign. Jurisdiction thing in US is temporary. Do not agree that ICANN should incorporated in the US but this may take a long time - decades. Parminder: David making two points which should be tken seperately - whether only choice of law (privae law) is in our mandate, and the more formal issue of whether q4 is properly worded to get appropriate info. lets not mix the two very different things. Parminder: if indeed the mandate is under question - let us elave everything and first discuss and agree on it. It is truoblesome that we keep this keeps coming back - we cant work in ths manner. So, pl lets be first clear about mandate Becky Burr: just want to note that I am on the call and will be replacing Erika Mann as backup Board Liaison. Parminder: next, when milton says there is no opposition to question 1-3 to go out. No, I oppose it. Bec without q 4, it puts a question on the nature of remit/ mandate of CCWG Jeff Neuman 2: on the other hand leaving the issue open will mean that we will be consistently having this debate and not be able to focus on the real substance of ICANN activities matthew shears: agree Jeff Wale Bakare: +1, to Jeff. We would continually looping Greg Shatan: (reading Parminder chat posting given audio issues). David McAuley: I still think we would need to use a professional survey taker to get valid input. Milton: Again, this is not survey research, we are not quantifying percentages, or sampling a target population Milton: we are asking for facts or incidents Mathieu Weill: Situation is quite confusing to me. There seems to be consensus that we need facts. We have agreed to disagree on the mandate of the group. Reminder we are working for the community as agreed in WS1. There are significant expectations both internally and externally to ICANN and we cannot be seen to be trying to limit valid discussions. This is one of the first real tests of the post transition ICANN - we need facts to advance. Milton: +1 Mathieu Philip Corwin: Agree with Jeff, which is precisely why I advocated that, after spending two years and $14 million in legal fees to create an accountability structure that worked within the framework of CA law, we should have resolved the issue in WS1. Unfortunately the decision was made to kick the can down the road -- now this subgroup should be the end of the road. If US corporate jurisdiction ever creates a major problem I have no doubt that the iCANN community will recognize and address that. Milton: so TT and DM we identified a wording problem in the first question and we fixed it. Tatiana Tropina: Phil, yes absolutely, *but* this decision shall be based on facts and not just on opinions what is good and what is bad Milton: Can you identify any specific way in which the phrasing of the questions would not produce useful data? Mathieu Weill: Honestly, I've never seen a survey, even tailored by professionals, that "containeed' people within a given scope. If they want to speak up, they will, and that is the multistakeholder model isn't it ? Kavouss Arasteh: about 10 days ago the PC proposal for Q4 had great deal of support - we should work on this basis - we cannot drop Q4 and need to move forward. Milton: Kavouss, it is clear that Q4 has strong support but it also has strong opposition. So we are proposing to separate it from the other questions, not to dump it - it needs more work Tatiana Tropina: Mathieu, sure! The point is that to unsure which info one gets when the answers come back. Tatiana Tropina: I agree to separate the Q4 and send it separately after fine tuning. Tatiana Tropina: I mean, I agree to disagree, I have concerns about questionnaire as a tool itself but I understand that we have to do something so I concur. Kavouss Arasteh: Dear Tidjani, Kavouss Arasteh: Why we should separate that??? David McAuley (RySG): Fair point Greg about not letting perfect be enemy of good – I am not convinced that good is at risk Kavouss Arasteh: Why we should separate that??? David McAuley (RySG): Fair point Greg about not letting perfect be enemy of good – I am not convinced that good is at risk Kavouss Arasteh: I can not agree to separate Q4 from the three other Qs Greg Shatan: Quality of survey should not be a major issue. We should use the remainder of our time to understand how to resolve Q4 issue. We need to work to resolve this by our next meeting. Any comments on the preamble. Kavouss Arasteh: Pls kindly do not promote to separate Q4 from tother questions Mathieu Weill: @Kavouss, it is Greg, not Grec ;-) Kavouss Arasteh: It would be misinterpreted by the crecipiants Tatiana Tropina: Mathieu I think even Greg will agree that he is Grec now :-) Parminder: Prefer alternative 2, can live with alt 1, but dont accept current text or alt 3 Kavouss Arasteh: Preamble should precise and short and questions should be a max of 10 lines each. Make this as short as possible. Greg Shatan: Which version do you support? Kavouss Arasteh: support the shortest version. Parminder: to answer Greg, I dot support alt 3 bec it quotes the mandate selectively Philip Corwin: Prefer alt 1 -- shorter is better Parminder: Shorter and high level is best Steve DelBianco: I prefer Alternative 1 Milton: Alternative 1 for me Tatiana Tropina: Alternative 1 too David McAuley (RySG): support alt 1, qualified by my remarks Kavouss Arasteh: Generally Speaking, people responding may not pay a lot of attention to Preamble Milton: right, Kavouss Greg Shatan: (survey on preamble) CW JJS opposed 6 in support. CW: Alternative 2 is OK if there are links to Final Report and Mandate Kavouss Arasteh: i COULD AGREE WITH ALT 1 matthew shears: alt 1 is OK Parminder: I had requested to add "implementation of policy" to alt i Parminder: alt 2 for me is best Kavouss Arasteh: cAN YOU TRY aLT 1 AGAIN Seun Ojedeji: why try again @Kavouss? Mary Uduma 2: Alt 1 for me Tatiana Tropina: The check count for Alt 1 was confusing. I deleted my green check before Greg did a final count :-) Milton: Let's do another check of support for Alternative 1 Parminder: Greg, you had added "policy impementation" to accountabiltiy at the end of para 2 of alt 1 - that option is not here Parminder: Greg, you had added "policy impementation" to accountabiltiy at the end of para 2 of alt 1 - that option is not here Seun Ojedeji: Seun: Alt 1 prefered for preamble Tatiana Tropina: yes please put alt 1 for final check Parminder: I am fine with alt 1, but as Greg had amended on the elist Tatiana Tropina: I support both! With or without addition. :-) Greg Shatan: Preamble Alt 1 with the added text is preferred and I will put it on the list for preparation of our nest meeting. Kavouss Arasteh: vERY GOOD Kavouss Arasteh: it is done Jeff Neuman 2: I need to see the full text befor making a determination Greg Shatan: Discussing Question 1. Option 1 and 2 re Domain Name vs DNS. Milton: Alt 1 now CW: Q1: maintain DNS. that includes the root and addresses CW: Q1 maintain Privacy. Greg Shatan: Will post alternative 1 to the list as a final recommendation. Kavouss Arasteh: I CAN NOT MANIPULATE CROSS COLOUR Jean-Jacques Subrenat: Greg, there was an audio cut, I missed some of your comments. I am against most alternatives, but am in favour of Alternative 7, the one you proposed. Greg Shatan: we need to get to question 4 on our next call and I will post to the list on this. Good Call.Adjourned. Documents Presented · ICANN Expected Standards of Behavior.pdf<https://community.icann.org/download/attachments/63153605/ICANN%20Expected%…> · Chart showing alternatives for Questionnaire.pdf<https://community.icann.org/download/attachments/63153605/Chart%20showing%2…> · InfluenceofExistingJurisdiction.pdf<https://community.icann.org/download/attachments/63153605/InfluenceofExisti…>

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Materials for Upcoming Jurisdiction Call
by Greg Shatan Jan. 6, 2017

Jan. 6, 2017

All, I have attached the Agenda and copies of each document mentioned in the Agenda, in Word and PDF. These are - ICANN Expected Standards of Behavior - Questionnaire Proposals -- I've put this into a different chart form to assist in comparing alternatives - Influence of Existing Jurisdiction... Document I look forward to our call. Greg

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Agenda for 6 January Call
by Greg Shatan Jan. 6, 2017

Jan. 6, 2017

1. Introduction 2. Expected Standards of Behavior 3. Proposed Questionnaire 4. Effect of Choice of Law and Venue Document 5. AOB

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Re: [Ws2-jurisdiction] [CCWG-ACCT] The crusade for clarity continues
by John Laprise Jan. 5, 2017

Jan. 5, 2017

Strongly agree. Best regards, John Laprise, Ph.D. Consulting Scholar <http://www.linkedin.com/in/jplaprise/> http://www.linkedin.com/in/jplaprise/ From: James M. Bladel [mailto:jbladel@godaddy.com] Sent: Thursday, January 5, 2017 4:03 PM To: Greg Shatan <gregshatanipc(a)gmail.com>; John Laprise <jlaprise(a)gmail.com> Cc: accountability-cross-community(a)icann.org; ws2-jurisdiction <ws2-jurisdiction(a)icann.org> Subject: Re: [CCWG-ACCT] The crusade for clarity continues And once the criteria have been established, I think we’d also need to clearly demonstrate whether/how the current (US/California) jurisdiction fails to deliver on some/all of these identified points. Thank you, J. ----- James Bladel From: <accountability-cross-community-bounces(a)icann.org <mailto:accountability-cross-community-bounces@icann.org> > on behalf of Greg Shatan <gregshatanipc(a)gmail.com <mailto:gregshatanipc@gmail.com> > Date: Thursday, January 5, 2017 at 16:00 To: John Laprise <jlaprise(a)gmail.com <mailto:jlaprise@gmail.com> > Cc: "accountability-cross-community(a)icann.org <mailto:accountability-cross-community@icann.org> " <accountability-cross-community(a)icann.org <mailto:accountability-cross-community@icann.org> >, ws2-jurisdiction <ws2-jurisdiction(a)icann.org <mailto:ws2-jurisdiction@icann.org> > Subject: Re: [CCWG-ACCT] The crusade for clarity continues Other criteria might include ease of access to courts and other forms of redress (e.g., arbitration), including timing and predictability of results, and ease of enforcing judgments (including enforcing judgments abroad). Political and financial stability and personal safety could also come into play. Government policies such as strength of freedom of speech and any history of unilaterally nationalizing businesses could also be criteria. In this specific instance, we would need to look at whether the accountability mechanisms that the CCWG arrived at in WS1 could be carried out under that jurisdiction's laws. As John Laprise notes, there are multiple complex criteria, and we could possibly get information from outside entities that measure various criteria if this was something to be pursued. Greg On Thu, Jan 5, 2017 at 4:24 PM, John Laprise <jlaprise(a)gmail.com <mailto:jlaprise@gmail.com> > wrote: Criteria might include strength (vis a vis rule of law), fairness, and level of corruption. These are complex criteria which can be (and are by various entities) broken down into component attributes. Best regards, John Laprise, Ph.D. Consulting Scholar <http://www.linkedin.com/in/jplaprise/> http://www.linkedin.com/in/jplaprise/ From: Zakir Syed [mailto:zakirbinrehman@yahoo.com <mailto:zakirbinrehman@yahoo.com> ] Sent: Thursday, January 5, 2017 2:04 PM To: John Laprise <jlaprise(a)gmail.com <mailto:jlaprise@gmail.com> >; Kavouss Arasteh <kavouss.arasteh(a)gmail.com <mailto:kavouss.arasteh@gmail.com> >; Mueller, Milton L <milton(a)gatech.edu <mailto:milton@gatech.edu> > Cc: ws2-jurisdiction(a)icann.org <mailto:ws2-jurisdiction@icann.org> ; accountability-cross-community(a)icann.org <mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] The crusade for clarity continues What would be the criteria for the acceptability of such a "superior jurisdiction"? _____ From: John Laprise <jlaprise(a)gmail.com <mailto:jlaprise@gmail.com> > To: Kavouss Arasteh <kavouss.arasteh(a)gmail.com <mailto:kavouss.arasteh@gmail.com> >; "Mueller, Milton L" <milton(a)gatech.edu <mailto:milton@gatech.edu> > Cc: "ws2-jurisdiction(a)icann.org <mailto:ws2-jurisdiction@icann.org> " <ws2-jurisdiction(a)icann.org <mailto:ws2-jurisdiction@icann.org> >; "accountability-cross-community(a)icann.org <mailto:accountability-cross-community@icann.org> " <accountability-cross-community(a)icann.org <mailto:accountability-cross-community@icann.org> > Sent: Friday, December 30, 2016 3:59 AM Subject: Re: [CCWG-ACCT] The crusade for clarity continues "Any stable jurisdiction where the corporate law provides suitable accountability would do." This is the crux of the argument regarding jurisdiction. Until advocates of ICANN relocation can identify a superior jurisdiction acceptable to all, the question is moot and should be tabled with Kavous's and Parminder's objections noted. On Thu, Dec 29, 2016, 4:50 PM Kavouss Arasteh <kavouss.arasteh(a)gmail.com <mailto:kavouss.arasteh@gmail.com> > wrote: Dear Professor, You put too much emphasis on private . Please read Bylaws Core value and the R9ole of Governments Regards Kavouss 2016-12-29 23:01 GMT+01:00 Mueller, Milton L <milton(a)gatech.edu <mailto:milton@gatech.edu> >: Milton, since you seem to so very clear about everything, and on a crusade to correct everyone's confusions MM: Oh dear, I’ve been called a “crusader.” (It almost made me fall off my horse.) can you give us an example of such "jurisdiction that does not involve national borders at all", without it implying an agreement reached among states. Are you promoting US jurisdiction as such jurisdiction without borders? MM: ICANN was based on a strategy of globalization through private law. In order to avoid jurisdictional fragmentation of the domain name system, it created a global governance agency based on private contracts. Of course as a private corp ICANN has to be incorporated somewhere, in this case for historical reasons it was the US. It then issues private contracts that apply anywhere, like other multinationals. It does not have to be incorporated in the US to follow this strategy. Any stable jurisdiction where the corporate law provides suitable accountability would do. So the short answer to your typically manipulative question is no, I am not promoting “US jurisdiction as such,” I am calling attention to the rationale behind the original decision to make ICANN a private nonprofit. _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community(a)icann.org <mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community(a)icann.org <mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community(a)icann.org <mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community(a)icann.org <mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community

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Re: [Ws2-jurisdiction] [CCWG-ACCT] The crusade for clarity continues
by John Laprise Jan. 5, 2017

Jan. 5, 2017

Criteria might include strength (vis a vis rule of law), fairness, and level of corruption. These are complex criteria which can be (and are by various entities) broken down into component attributes. Best regards, John Laprise, Ph.D. Consulting Scholar <http://www.linkedin.com/in/jplaprise/> http://www.linkedin.com/in/jplaprise/ From: Zakir Syed [mailto:zakirbinrehman@yahoo.com] Sent: Thursday, January 5, 2017 2:04 PM To: John Laprise <jlaprise(a)gmail.com>; Kavouss Arasteh <kavouss.arasteh(a)gmail.com>; Mueller, Milton L <milton(a)gatech.edu> Cc: ws2-jurisdiction(a)icann.org; accountability-cross-community(a)icann.org Subject: Re: [CCWG-ACCT] The crusade for clarity continues What would be the criteria for the acceptability of such a "superior jurisdiction"? _____ From: John Laprise <jlaprise(a)gmail.com <mailto:jlaprise@gmail.com> > To: Kavouss Arasteh <kavouss.arasteh(a)gmail.com <mailto:kavouss.arasteh@gmail.com> >; "Mueller, Milton L" <milton(a)gatech.edu <mailto:milton@gatech.edu> > Cc: "ws2-jurisdiction(a)icann.org <mailto:ws2-jurisdiction@icann.org> " <ws2-jurisdiction(a)icann.org <mailto:ws2-jurisdiction@icann.org> >; "accountability-cross-community(a)icann.org <mailto:accountability-cross-community@icann.org> " <accountability-cross-community(a)icann.org <mailto:accountability-cross-community@icann.org> > Sent: Friday, December 30, 2016 3:59 AM Subject: Re: [CCWG-ACCT] The crusade for clarity continues "Any stable jurisdiction where the corporate law provides suitable accountability would do." This is the crux of the argument regarding jurisdiction. Until advocates of ICANN relocation can identify a superior jurisdiction acceptable to all, the question is moot and should be tabled with Kavous's and Parminder's objections noted. On Thu, Dec 29, 2016, 4:50 PM Kavouss Arasteh <kavouss.arasteh(a)gmail.com <mailto:kavouss.arasteh@gmail.com> > wrote: Dear Professor, You put too much emphasis on private . Please read Bylaws Core value and the R9ole of Governments Regards Kavouss 2016-12-29 23:01 GMT+01:00 Mueller, Milton L <milton(a)gatech.edu <mailto:milton@gatech.edu> >: Milton, since you seem to so very clear about everything, and on a crusade to correct everyone's confusions MM: Oh dear, I’ve been called a “crusader.” (It almost made me fall off my horse.) can you give us an example of such "jurisdiction that does not involve national borders at all", without it implying an agreement reached among states. Are you promoting US jurisdiction as such jurisdiction without borders? MM: ICANN was based on a strategy of globalization through private law. In order to avoid jurisdictional fragmentation of the domain name system, it created a global governance agency based on private contracts. Of course as a private corp ICANN has to be incorporated somewhere, in this case for historical reasons it was the US. It then issues private contracts that apply anywhere, like other multinationals. It does not have to be incorporated in the US to follow this strategy. Any stable jurisdiction where the corporate law provides suitable accountability would do. So the short answer to your typically manipulative question is no, I am not promoting “US jurisdiction as such,” I am calling attention to the rationale behind the original decision to make ICANN a private nonprofit. _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community(a)icann.org <mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community(a)icann.org <mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community(a)icann.org <mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community

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FW: [CCWG-ACCT] RES: Jurisdiction Proposed Questions and Poll Results
by parminder Jan. 5, 2017

Jan. 5, 2017

On Friday 30 December 2016 03:23 AM, Mueller, Milton L wrote: > Parminder said “I havent seen not only no attempt to explore ways to > stop such influence by you, and many others here > > > > Translated, it means: > > > > I just wanted to know what do you propose to do about this clearly > identified jurisdiction problem? > > > > MM: First, it isn’t all that clearly identified. Other than OFAC, we > need to explore the scenarios, if any, in which it might have impact. > You say OFAC issue is clear but not others..Others have listed <http://www.itforchange.net/sites/default/files/Jurisdiction%20of%20ICANN.pdf> OFAC plus non OFAC issues, which are a lot of groups. But lets say even with OFAC, what do you propose we do about it? BTW, I am sure you know the following passage in the GTLD handbook. It is clear that ICANN must and would comply with all US laws, rules and regulations, be it OFAC, intellectual property related, trade sanctions, FFC orders, any new laws not imagined till now, the new hypothetical Trump Act, whatever........................ Is this not an identification of a problem enough? I see it as a clearly identified problem, on solutions for whic hwe should be working, even without waiting for responses to our proposed questionnaire. GTLD Guidebook Version 2012-1-11 Legal Compliance -- ICANN must comply with all U.S. laws, rules, and regulations. One such set of regulations is the economic and trade sanctions program administered by the Office of Foreign Assets Control (OFAC) of the U.S. Department of the Treasury. These sanctions have been imposed on certain countries, as well as individuals and entities that appear on OFAC's List of Specially Designated Nationals and Blocked Persons (the SDN List). ICANN is prohibited from providing most goods or services to residents of sanctioned countries or their governmental entities or to SDNs without an applicable U.S. government authorization or exemption. ICANN generally will not seek a license to provide goods or services to an individual or entity on the SDN List. In the past, when ICANN has been requested to provide services to individuals or entities that are not SDNs, but are residents of sanctioned countries, ICANN has sought and been granted licenses as required. In any given case, however, OFAC could decide not to issue a requested license. The current Q4, as I have said, does a lousy job of this. Sure, but in all this long discussion you havent mentioned what kind of question will do a non-lousy job. > > PS: Further, if going down an international treaty route is > problematic for you, do you think jurisdictional immunity under the > International Organisations Immunities Act is a good way to address > this jurisdictional problem? > > > > MM: International treaty would take decades, and given the > irrationality of inter-state rivalries, seems unlikely ever to produce > a good solution. > You have surely changed your views 180 degrees over the last 10 years, since when you had advocated, in 2005-06, for a governments negotiated "Framework convention on the Internet". That is ok, but others still do believe that the comity of nation states can achieve much. I dont see your global network of private contracts take up global governance, god forbid! > > > MM: The IOIA isn’t all that promising, keep in mind that to qualify as > an “international organization” under that Act the US Congress has to > recognize the organization as such and thus you would be bringing > ICANN back under the authority of the US congress, > This is just some cheap intellectual dishonesty (this is for calling me "typically manipulative", in another email). Milton, are you trying to tell us that if the CCWG recommends that ICANN be given immunity under IOIA ONLY THEN would or can ICANN get subject to Congress!!!! And you call yourself a professor of policy studies or whatever!! The US congress can, if it so decides, right now eat ICANN with breakfast, with no invitation required, from CCWG, from the so called "Internet community", or from prof milton. What really do you mean to say that seeking immunity under IOIA will "bring ICANN back under the authority of the US congress"?? When did it go out of authority of US congress? It must take extra-ordinary intellectual dishonesty and disingenuity for a US prof of policy to tell us that trying to seek immunity from US jurisdiction, even if under a US law, will actually being ICANN "back under" US/ congress's authority/ jurisdiction.... > which doesn’t seem so nice after the Republican takeover > As far as possible, I like not to talk about other countries' democratic choices . But it is your (US's) problem really! Why we should get thrown into this, who never voted this way or that-- majority of USians voted a particular way, and you are in a social contract together, and so just accept it. But why should we, non USiasn, have to go with what happens or does not happen to your Congress. Milton/ others, are you guys left with no feeling of democratic fraternity with the rest of the world at all - is this the level that we are getting reduced to. > and our experiences last September. Indeed, the IOIA was designed with > state-based, diplomatic organizations in mind – it applies to the UN, > the Holy See and the European Central Bank for example. > Now more than a dozen times I have given the example of International Fertilizer Development Center, as a US non profit under IOIA given immunity, and there are many others. Only yesterday I linked the entire list of orgs under IOIA immunity, many of them non IGOs. But you havent noticed it, yet, right. Try some intellectual honesty, Milton, a term you throw around a lot. Do you not see the hypocrisy here, but how can you, that would be a contradiction in terms. > So your holding up of this option is what drives Corwin’s sense that > this debate is about whether ICANN turns into an IGO. > Should I write it on stamp paper with notary authentication and post it your home, that, no IOIA does not only give immunity to IGOs. It has given imunity to many non IGos. If you do not have a good argument dont just keep throwing around mis- representations. > Finally, the exemptions of the IOIA confer all kinds of immunities on > the organization that we might not want, such as exemptions from > property and income taxes (I know you are a big fan of those) > I thought ICANN is already exempted from income tax due to its non profit status. But, then certainly I do not want it to be paying tax to the US on income it makes from a global governance activity. Why should it? > and worse, immunity from lawsuits. Are you kidding me? You want ICANN > to be immune from lawsuits? > So, Milton, you havent till now realised that the jurisdiction issue is about immunity from lawsuits, brought under the laws of one country, to which the rest of the world does not contribute? Yes, we do not want anyone to be able to challenge .ir or .africa, or a hypothetical Indian generic drugs company owned .Sunpharma. under US laws. Becuase these laws, and the US courts, apply the test of US public interest, not, or certainly in priority to, that of global Interest. All countries do it, there is no other way. That was always the whole point. parminder > >

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CHANGE of Time and Day of this week's Jurisdiction Subgroup meeting
by Greg Shatan Jan. 4, 2017

Jan. 4, 2017

All: No objections having been received, the time and day of this week's meeting will be changed to *Friday, 6 January, 2017 at 13:00 UTC*. By copy of this email, I ask Staff to circulate an updated announcement reflecting this change. Thank you. I look forward to Friday's meeting. In the meantime, please review the document relating to the Proposed Questionnaire: https://docs.google.com/document/d/1XHNwFUr2wA-w65ynd6YjuDyuBjx0V9PAxt-81z3… Best regards, Greg

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Time of the meeting on 05 Jan 2017
by Kavouss Arasteh Jan. 4, 2017

Jan. 4, 2017

Dear Grec, May you kindly confirm the time of the next SUB GROUP on Jurisdiction as 05 Jan. 2017 at 13,00 UTC. I appreciate very much agreements given by some colleagues for 13,00 UTC.on 05.01.2017 Regards Kavouss

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