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Notes, recordings, transcript for WS2 Jurisdiction Subgroup Meeting #4 - 21 September 2016
by MSSI Secretariat Sept. 26, 2016

Sept. 26, 2016

Hello all, The notes, recordings and transcripts for CCWG Accountability WS2 Jurisdiction Subgroup Meeting #4 – 21 September 2016 will be available here: https://community.icann.org/x/EB2sAw 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 elements of the chat): 1. Welcome Note 29 participants at start of call. Greg Shatan: no changes to SOI and no participants on phone only. 2. Approach to ICANN’s Place of Incorporation and Headquarters Location a. Should the scope of the Jurisdiction topic include examining the effects of ICANN's place of incorporation and location (for example, on the actual operation of policies and accountability mechanisms and on the settlement of disputes), or should this be out of scope? b. Should the scope of the Jurisdiction topic include the possibility of recommending that ICANN be directed to change its place of incorporation and/or headquarters location, or should this be out of scope? David McAuley: This should be resolved by this group if possible and it may take several weeks. This is essentially the nub of our work. Greg Shatan: uncertain if this is the nub or a red herring. Tijani Ben Jemaa: Agree with DM we need to resolve this here. We need to agree on all the layers. Milton Mueller: David: Are you saying we do not resolve the questions yet, or we do not resolve whether they are in scope or not? David McAuley (RySG): in scope or not - to me that also takes time and thought - I believe not in scope but understand others don't agree. Greg Shatan: the objective of the questions was to confirm the remit from WS1. Kavous Arasteh: Why do we need to discuss this here (2nd question) Finn Petersen, GAC - DK: Agree with Kavouss -ICANN's entire new structure and the empowered community is all based on California law. Our task is not to change the place of incorporation of ICANN. But if anybody can point to potential problems, we might look into means to address such problems without changing ICANN’s place of incorporation. Avri Doria: it is not in our scope and shall not be discussed? Milton Mueler: .Jurisdiction of incorporation is a bad idea but not out of scope. Long term we need to address this. My personal view is that it should be out of scope but not against discussing. Greg Shatan: there are 3 answers to the question: invalid, make recommendations to CCWG. Jeff Neuman: 2B is out of scope becasue of practicality. 2A however is in scope. Milton Mueller: Agree, Jeff, but that is an argument against changing jurisdiction it is not an argument that it is out of scope Greg Shatan: When we discuss scope we are referring to tthe scope of this group. Phil Corwin: My view is that we should enshrine ICANN incorporation in the US. We should not use scope to limit discussions of this. Milton Mueller: right Philip, it's a question of rationality not scope Pedro da Silva: I see the two questions as belonging to two different parts of our work. 2A is about scope and I believe it includes ICANN's jursidiction of incorporation as part of the layers. The second part of our work is about recommendations and there are many good arguments about not moving ICANN and these will be as valid in 9 months as they are now - but at that time we will have much more input. jorge cancio (GAC Switzerland): for the gap analysis we should look at the second draft report available here: https://community.icann.org/pages/viewpage.action?pageId=53783460. The relevant pages are 121-124. Milton Mueller: Jeff, my understanding was that a lot of people wanted to discuss it in WS1 but it was too disruptive a change in the short term so we told them to push it into WS2 Erich Schweighofer: The place of jurisdiction is flexible but it is unwise to change unless the present favourable situation exists. Other options have to be considered, maybe trying with certain activities. Milton Mueller: Jeff, my understanding was that a lot of people wanted to discuss it in WS1 but it was too disruptive a change in the short term so we told them to push it into WS2 Erich Schweighofer: The place of jurisdiction is flexible but it is unwise to change unless the present favourable situation exists. Other options have to be considered, maybe trying with certain activities. David McAuley: the remit in 2A is good. 2B is about identifying alternatives. However I do not beleive we should look at moving ICANN. But we should have alternatives if there is ever a problem. Kavous Arasteh: We should be practical, pragmatic and logical - everything is based on California law and there is a provision in the Bylaws to allow the Board to propose moving if necessary. There is no reason and no possibility that in the next few years that this would ever get approved. We do not need anything on changing jurisdiction of incorporation. Christopher Wilkinson: in 2A my interest is that dispute resolution is available to participants worldwide and not limited to American legal system, mostly about the cost which would prevent many from using it. Paul McGrady: We have been asked in the GNSO to approve a budget for WS2 and looking at alternative jurisdictions will require significantly more funds. As the WS1 recommendation leaves it open to us if we discuss jurisdiction or not - and if we want to do this optional topic we need a consensus call from this group to take work which will take more than a year and 10's of millions of dollars. Tijani Ben Jemaa: If we do not reach consensus on anything we simply report it. Greg Shatan: Given the time left on this call I would ask everyone to read Mathew Shears comment. Kavous Arasteh: What is the status of 2B? Greg Shatan: My impression is there is little support for taking place of incorporation off the table as looking at its effects. Paul McGrady: So we are not talking about the choice of Jurisdiction but rather about the effects of the exisitng Jurisdiction. If there are issues with the effects the group could recommend modified accountability measures to the CCWG. Greg Shatan: yes this is what I am asking. Examples looser pays. So if this cannot be discussed please give a red X. None. As such this should be in scope but will ask the list. 3. Gap Analysis: Annex 12 includes “confirming and assessing the gap analysis.” a. We need a common understanding of what this refers to. Does the “gap analysis” refer to a determination in WS1 that there were no significant gaps in the WS1 accountability proposal resulting from ICANN's current jurisdictional framework? b. How should we confirm and assess the gap analysis? David McAuley: the current Byalws meets the requirements and as such the gap analysis has been done. Kavous Arasteh: GAP analysis needs to be addressed. Pedro da Silva: Disagree with DM and beleive we have not done a gap analysis. the difference betweeen our accountability requirements vs how they were implemented under California laws. One example of this is the models that were available such as Designator and the Empowered Community. Greg Shatan: We need to write this up for disccussion. Tijani Ben Jemaa: there are two interpretations - if there is a need to do one we should have a small group on this. Philip Corwin: @David--Agree that ICANN is free to agree to using law/courts of a jurisdiction other than CA for contract disputes -- but also think it is most unlikely to do so for standard agreements with contracted parties. Why would it want to take on risks of different laws and adjudictaion systems, not to mention cost of hiring local counsel? jorge cancio (GAC Switzerland): from the 2nd drafzt report: "1043 Initial gap assessment based on current CCWG-Accountability proposals: 1044 At this point of the work of the CCWG-Accountability, taking into account the comments received, the following issues have been identified for further investigation: • Requirement 4 (ability to sue and be sued to enforce Bylaws or accountability mechanisms): while some consider this requirement to be necessary, others would avoid as much as possible the use of any single country’s legal system. • Trade-off between CCWG-Accountability requirements and options under California law, particularly when discussing the community empowerment model. • Whether IRP decisions against ICANN would be binding despite local jurisdiction decisions. • Requirement 3 on governing law for contracts with registrars and registries may require further investigation. 1045 While these issues require further investigation, the CCWG-Accountability has not yet conducted a substantive examination of alternative jurisdict jorge cancio (GAC Switzerland): ....jurisdictions that would better fit its requirements. While some commenters suggest that incorporation of ICANN under other legal systems, such as Swiss not-for-profit, would be beneficial (yet the basis for their assumption remains uncertain), further analysis and deliberation is needed on a fact-based approach to be entertained during Work Stream 2. " jorge cancio (GAC Switzerland): at least now its on the record :-) David McAuley (RySG): agree @ Phil Greg Shatan: Strongly encourage particpation on the list. Also ask for people to work on the Google docs. 4. Continued Detailed Reading of the Google Docs. a. First Google Doc: https://docs.google.com/document/d/1UGRQqP5Bs923nmDYekZn5ZL7-DQc_QSa0GSnFoj… b. Second Google Doc: https://docs.google.com/document/d/1N2eCmjbA6bxJxCEluEHJIBzP_sGPN6krEqDshA0… 5. Other Potential Inputs to our Work. a. More Detailed Review of Lightning Talks (summarized in Staff Paper) b. Pertinent Literature (influenced by Scope) c. Experts/Legal Advice

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Re: [Ws2-jurisdiction] More on gap analysis
by Steve DelBianco Sept. 24, 2016

Sept. 24, 2016

I’ve not been able to join this group’s calls, but would like to register my agreement with David McAuley. My distinct recollection is that our Sidley and Adler legal teams told us there were no significant “gaps” in ensuring we could legally enforce the new Empowered Community mechanisms. This WS2 team should look at that gap analysis and confirm the conclusion. If there are enforceability gaps noted by our lawyers, we should analyze whether those gaps could be closed using ANY form of incorporation in ANY jurisdiction. I suspect our gap analysis will show that relative to other forms of organization in other places, we are as close as we need to be, and it is not worth the cost and controversy of pursuing alternatives. — Steve DelBianco Executive Director NetChoice From: <ws2-jurisdiction-bounces(a)icann.org<mailto:ws2-jurisdiction-bounces@icann.org>> on behalf of David McAuley <dmcauley(a)verisign.com<mailto:dmcauley@verisign.com>> Date: Saturday, September 24, 2016 at 9:59 AM To: "ws2-jurisdiction(a)icann.org<mailto:ws2-jurisdiction@icann.org>" <ws2-jurisdiction(a)icann.org<mailto:ws2-jurisdiction@icann.org>> Subject: [Ws2-jurisdiction] More on gap analysis I would like to respond to Greg’s suggestion in the call earlier this week. On the call we discussed the meaning of gap analysis and its possible implications. Greg asked if Pedro and I would separately note on list the points we each had been attempting to make on the call. What follows are my personal views. The sub-team was addressing the phrase in paragraph 30 of Annex 12 of the CCWG Final Report asking that we give consideration to, “Confirming and assessing the gap analysis, clarifying all concerns regarding the multi-layer jurisdiction issue.” I was/am of the view that the concept of “confirming” recognized that WS1 had in effect performed a gap analysis – the potential gap being whether the accountability measures that were proposed could or could not be applied to, and ultimately enforced against, ICANN. For example, when we decided in WS1 that we wanted the ability to remove board members we asked Sidley/Adler if that was possible within the California form we were analyzing - designator, not membership. If the answer had been that we could not then a gap would have existed. If it was that we could then we asked counsel to put the provision into appropriate legal language. We did the same for all accountability measures we wished to put in place, specifically revising the ICANN Mission, enhancing the IRP, and giving the community power/right to: · Reject ICANN budgets, IANA budgets, or strategic/operating plans; · Reject changes to ICANN’s standard bylaws; · Approve changes to new fundamental bylaws, Articles, and ICANN’s sale or disposition; · Remove a director; · Recall the entire board; · Initiate binding IRP; · Reject ICANN Board decisions relating to reviews of the IANA functions, including the triggering of Post-Transition IANA separation; and · Right of inspection, investigation. That, to me, was a gap analysis. In fact, Annex 12, paragraph 26, noted that WS1 might well have encountered gaps along the way – it recognized the fact that California law does have limits with respect to accountability mechanisms that might be imposed on ICANN. It is that recognition in paragraph 26 that admits a possible gap that we in the sub-team are meant to assess, as I see it. It is also important to note that our remit to confirm/assess the gap analysis is given to us with two qualifiers in paragraph 30: · First, that the main issues that we need to investigate in WS2 “…relate to the influence that ICANN´s existing jurisdiction may have on the actual operation of policies and accountability mechanisms. This refers primarily to the process for the settlement of disputes within ICANN, involving the choice of jurisdiction and of the applicable laws, but not necessarily the location where ICANN is incorporated:” (emphasis added) and · Second, our consideration in WS2 “will focus on the settlement of dispute jurisdiction issues and include…” the act of confirming/assessing the gap analysis that we are engaged in, along with identifying potential alternatives. I underscored the word “necessarily” in the first qualifier above because it appears consistent with the notion of being contingent – on us closing any potential gap. Our sub-team job is relatively straightforward: have we (WS1) managed to avoid or close such gaps; in other words, are the accountability mechanisms we chose applicable and enforceable? If we have succeeded then I submit that our work is limited to analyzing jurisdiction only insofar as it relates to settlement of disputes. And that is why our remit to “identify” potential alternatives, also bounded by the two qualifiers, is to examine potential alternatives with our focus being on settlement of dispute jurisdiction. During the call, Jorge listed in the chat certain portions from the CCWG Second Report mentioning gap analysis (addressing such things as ability to sue/be sued to enforce bylaws and other accountability mechanisms; binding-ness of IRP decisions, and more) and which called for more analysis. I believe that further analysis was done and reflected in the Final Report, which gave us the language we are now addressing. It is important to look at the sub-team work in context. In my view, incorporation in California has one distinct advantage over other locations as concerns ICANN – for over 18 years it has worked. It would be imprudent to consider a location change absent a material problem stemming from jurisdiction that is incapable of resolution. Moreover, consideration of an alternative for ICANN’s location would entail, per jurisdiction considered, roughly the same investment in time and lawyers’ attention that WS1 expended on legal fees. If this sub-team intends to go down that path, something I recommend against, then we need to make sure that we have budget to support such efforts. So in my view it makes practical sense as well as analytical sense (as performed by the CCWG) for the location issue to be out of scope in WS2 other than as it relates, if at all, to settlement of disputes. As Göran Marby said in last week’s hearing , ICANN is committed to remaining domiciled in the US, where it has operated successfully and, among other things, put in place thousands of contracts. David David McAuley International Policy Manager Verisign Inc. 703-948-4154

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Items for CCWG-Plenary: (1) Place of Incorporation
by Greg Shatan Sept. 20, 2016

Sept. 20, 2016

All, Based on our discussions, there were two topics identified as ones to be brought back to the CCWG Plenary, which is meeting tomorrow. These topics relate (i) examining ICANN's place of incorporation and (ii) the Gap Analysis that we have been tasked to "confirm and assess." I'll deal with the gap analysis issue in a separate email. This email deals with how (and whether) to approach the effects of ICANN's place of incorporation. Both in this group and in the CCWG generally, we have heard a range of views on how (and whether) to examine the effects of ICANN's place of incorporation (and perhaps, by extension, the location of ICANN's headquarters). On the one hand, there have been calls for a declaration that ICANN will forever be incorporated and located in California, putting issues relating to ICANN's place of incorporation/location out of scope. On the other hand, there have been calls to have any effects arising from ICANN's place of incorporation/location and all outcomes/recommendations relating to those effects be open to this group. I don't see sufficient support for either of these positions in the subgroup in their current form, so we need a way forward capable of broad support in this subgroup and the CCWG. Since we have not been able to resolve this matter in our group, this seems like an appropriate topic to bring back to the CCWG Plenary for clarification and guidance. *In looking for a way forward, I suggest we seek answers to two questions, based on the two positions above:* *(a) Should the subgroup (and thus the CCWG) be free to examine the effects of all "layers" of ICANN "jurisdiction," including ICANN's place of incorporation and location?* (Based on other aspects of Annex 12, this probably should focus in particular on the effect on "actual operation of policies and accountability mechanisms" and on settlement of disputes, but we don't need to make that scope decision quite yet.) *(b) Should the subgroup (and thus the CCWG) keep open all options for outcomes/recommendations arising from this examination (including changing ICANN's place of incorporation and/or location)?* We need an outcome that is likely to get broad support in the subgroup and the CCWG and allow us to move forward with our work. At the same time, we need to recognize that not everyone will be pleased, but pleasing everyone is impossible. After reviewing the various points and positions raised in the subgroup and CCWG, I would like to put forward the following answers as a "strawman": *(a) The subgroup should be free to examine the effects of ICANN's current place of incorporation/location.* *(b) The subgroup should eliminate the possibility that we will recommend to CCWG that ICANN be moved from California, either as a place of incorporation or as a physical location.* I've based this suggestion on an examination of issues raised by various participants during our work, listed below. You should all respond with your thoughts on the appropriate response to these questions, and feel free to provide any additional inputs for consideration. 1. Our remit is to look at all the "multi-layers" of jurisdiction, not only at selected layers. All jurisdictional issues relate back to rules of law and choices of law, and the influence of California law and location is relevant to all of those discussions. As a result, failure to even look at any aspect of the effects (positive or negative) of ICANN's place of incorporation and location would be seen an incomplete exercise of the remit of this group. 2. A declaration in perpetuity is inappropriate. ICANN, as a private corporation, should be free to consider changes to any aspect of its Bylaws and Articles, according to the methods chosen for its governance. We have revised and reformed these methods, and we should be able to use them in the future for all topics, even this one. 3. The CWG-Stewardship and CCWG-Accountability proposals (and their implementation) depend on California as the place of incorporation. For example, ICANN's Bylaws are based in California law and the Bylaw revisions (now accepted by ICANN but waiting to be made effective) are similarly based on California law. 4. More particularly, the Empowered Community is based on the "designator" concept in California non-profit law and on the treatment of "unincorporated associations" (particularly, the personhood of unincorporated associations) as set forth in California law. 5. It has been suggested that changing ICANN's place of incorporation would disrupt the proposed changes just as they are being put in place and essentially "re-open" Work Stream 1. This would undo a great deal of work, throw the Accountability mechanisms and other changes into uncertainty, and open the door to massive attempts at "re-trading". 6. We should allow the new accountability mechanisms an appropriate amount of time to function "as is" before even considering a jurisdictional change that would have across-the-board effects on these mechanisms and other recommended reforms (and require another CCWG, or at least WS3). 7. The revised (and current) Articles of Incorporation state that ICANN "is organized [i.e., incorporated] under the California Nonprofit Public Benefit Corporation Law for charitable and public purposes." Changes to the Articles should be approached with the same level of gravity as changes to the Fundamental Bylaws, which are not to be taken lightly. Any change will require the same process as changes to the fundamental Bylaws (i.e., 75% vote of Board and convening Empowered Community and getting EC approval). 8. Arriving at a choice of another jurisdiction for these purposes would likely require a multi-year effort to accomplish, which by itself is outside the scope of Work Stream 2, which essentially has a one-year lifespan. We need to consider whether this is a practical outcome. 9. Even if we find negative effects from ICANN's California incorporation or location, we should start with less disruptive and more contained remedial measures. It would be premature to move past more straightforward options and recommend the drastic outcome of moving ICANN. If more modest options are tried and they fail to resolve a fundamental problem, then it would be appropriate for some future WG (or the EC) to suggest bigger changes. 10. Aside from the governance issues, moving ICANN completely out of California (and possibly the US) would require an immense amount of work for the corporation, staffing problems, etc. 11. Examining and resolving issues such as venue and providers of dispute resolution mechanisms, language of proceedings, applicable law(s) for disputes: addressing the laws of jurisdiction where contracting parties are established (including potential conflicts between commitments derived from ICANN policies and such national legal frameworks), and internal redress mechanisms does not require the ability to change ICANN's place of incorporation or location. I look forward to all your thoughts. Greg

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CCWG Plenary Topic: Gap Analysis
by Greg Shatan Sept. 20, 2016

Sept. 20, 2016

All, As mentioned in my prior email, we discussed seeking clarification from the CCWG Plenary regarding the Annex 12 statement that the Jurisdiction work should include "confirming and assessing the gap analysis." The statement does not include any further identification of the gap analysis or its results. To the best of our knowledge, there is no analysis done in WS1 that was called a "gap analysis" in so many words. Our rough interpretation is that this refers to the (implicit?) determination that there were no significant gaps in the accountability proposals resulting from ICANN's current jurisdictional framework. However, clarifying (or correcting) this would be helpful. To bring this back to the CWG Plenary, I would propose the following question: *The scope of the Jurisdiction topic in Annex 12 includes "confirming and assessing the gap analysis." * *1. Can the CCWG Plenary identify the "gap analysis" referred to? * *2. If there was no formal gap analysis, is it correct to assume that this refers to a determination that there were no significant gaps in the WS1 accountability proposal resulting from ICANN's current jurisdictional framework? * Greg

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Notes, recordings, transcript for WS2 Jurisdiction Subgroup Meeting #3 - 14 Sept
by MSSI Secretariat Sept. 20, 2016

Sept. 20, 2016

Hello all, The notes, recordings and transcripts for CCWG Accountability WS2 Jurisdiction Subgroup Meeting #3 – 14 September 2016 will be available here: https://community.icann.org/x/shusAw 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 (BT): Relevant web pages: General Jurisdiction wiki https://community.icann.org/display/WEIA/Jurisdiction This meeting: https://community.icann.org/pages/viewpage.action?pageId=61610930 1. Welcome, attendance, SOIs, etc. Vinay Kesari: no changes. 2. ICANN's recently released IANA Stewardship Q&A, particularly #7 Greg Shatan: (from the ICANN response) Will ICANN relocate its headquarters outside of the United States after the transition?No. ICANN will not relocate its corporate headquarters location after the transition. The transition proposal clearly states [PDF, 2.32 MB] that "the legal jurisdiction in which ICANN resides is to remain unchanged." California law is the basis for the new mechanisms created to empower the ICANN community and hold ICANN the organization, Board and community, accountable. In addition, ICANN's Articles of Incorporation are filed under California law, and its Bylaws state that ICANN's headquarters are in California. Vinay Kesari: any comments? Tijani Ben Jemaa: What is the value of this for our work? This does not seem to add anything for us. Christopher Wilkinson: Concerned with the activities of the Sidley law form - codifying the relationships between all parts of ICANN seems to be significantly too much. This would be a cause for thinking of moving from the US jurisdiction. Erich Schweighofer: Christopher Wilkinson is right: a benevolent jurisdiction without much interference is a key element. Tatiana Tropina: I never thought that tjis group in the WS2 was supposed to discuss the issue of the ICANN jurisdiction as a corporation... Pedro da Silva: ICANN's recently released IANA Stewardship Q&A is unclear if this is the position of the community or a single Board member. Question 7 should not be relevant to our discussion. Jeff Neuman: I have to admit I am lost. I am only paying attention to WS2 items so if there are other documents I need to review, can we please post those docs Steve DelBianco [GNSO - CSG]: Bylaws and Articles have ALWAYS said California corporation and location. We didn't change that. But we did give the empowered community the ability to block bylaws change, and to approve any change to the Articles. Kavous Arasteh: We should not be discussing this Q&A question as it is misleading. Tijani Ben Jemaa: let us focus on working on our draft document. Vinay Kesari: The Q&A question 7 is relevant input. Greg Shatan: All CWG related issues should be out of scope for this group. Kavous Arasteh: Agree with respect to CWG. Pedro da Silva: Why misleading - because it limits the issue of jurisdiction to California law and brings no new information to our discussion. Steve DelBianco [GNSO - CSG]: Pedro -- jurisdiction of ICANN's contracts can be specified in the contract. Not the same thing as ICANN's place of location Gerg Shatan: Is jursidiction oof headquarters of ICANN a topic for this group? Pedro da Silva: Yes - it is important no to pre-judge the answers to the multi-layer discussions. Jeff Neuman: I do not believe that the place of incorporation is in scope for this subgroup Tatiana Tropina: I also don't believe that the place of incorporation is for this group to decide . Jeff Neuman: As Mr. Marby said during the testimony today, ICANN's entired new structure and empowered community is all based on California and California law. If we deviate from that, then ICANN's entire model and everything we have worked on for the past number of years gets thrown out the window. Greg Shatan: Obviously there is a difference of opinion on this and we should note that this is an open question which we will have to resolve soon. Robin Gross: Jeff and Tatiana are right. We can't redo all those reforms at this point. Kavous Arasteh: Location of ICANN head office is not open for discussion. jorge cancio (GAC Switzerland): I feel we do not need to be so absolute - the current location is a fact. We always said we would look at whether that means any problem. If there is such a problem, that does not mean that we suddenly change the location, but that we look for solutions that are reasonable... Pedro da Silva [GAC Brasil]: All I am defending is an open approach to this topic and thereby not antecipate any results. Edward Morris: Section 24.1 of the new Bylaws puts the place of business in Los Angeles, California but does allow for the establishent of offices elsewhere. Tijani Ben Jemaa: This Q&A is not relevant to our work let us focus on our work. jorge cancio (GAC Switzerland): anyway, the present and real location of ICANN is a place called "adobe connect" :P 3. Scope discussion: - Continue Detailed Reading of Google Doc (Staff Paper, as revised and annotated by Members of Subgroup) Greg Shatan: we need to increase contributions. Kavous Arateh: what do you mean by gaps. Greg Shatan: this language is in Recommendation 12 from the WS1 report. Jeff Neuman: Remove BUT NOT NECESSARILY and agree that we cannot get into where ICANN is incorporated. jorge cancio (GAC Switzerland): I'm not sure whether this subgroup is empowered to change the "job description" established by the full CCWG... that's why I always suggested to start with annex 12 and its wording, without picking and choosing from it. Jeff Neuman: Perhaps a better way to state this is "What are the issues that arise due to the current jurisdiction in which ICANN is located"? jorge cancio (GAC Switzerland): I would agree with that Pedro da Silva: what is the difference between the accountability requirements from WS1 vs the implementation. Also we cannot change the scope provided to us by the full CCWG. We need to consider all aspects of jurisdiction. Jorge cancio (GAC Switzerland): But as said, location is one aspect - the venue and character of the arbitration mechanisms and litigation venues, as well as the applicable law to disputes would be important issues Jeff Neuman: Can you point me to the exact location in the WS1 final report which states that we remain open to consider the place where ICANN is incorporated? Greg Shatan: there are obviously two views vs location of incorporation. We may have to bring this back to the plenary if we cannot resolve this ourselves. We have two significant issues we need to continue to discuss: Should the scope include where ICANN is incorporated and what a GAP analysis would be in this case. jorge cancio (GAC Switzerland): agree with Greg: some questions, especially if they mean to change text agreed by the CCWG and the community as a whole in Marrakech, at least need to go to the plenary Jeff Neuman: And my proposal is that we do not talk more about the incorporation for the reasons Mr. Marby testified today Jeff Neuman: And because that would overturn everything we have done for the past several years Kavouss Arasteh: If we recosider the location all assumption based on which the " Sigle Designator2 was adopted will disappear and we would be sent back to square one Pedro da Silva: People seem to be concerned that we even discuss this - we need to understand how ICANN's jursidiction interferes with its work. Kavouss Arasteh: Location of ICANN IS DIFFERNT FROM JURISDICTION Jeff Neuman: @Kavouss - agreed. And that is not the same thing as "place of incorporation" Jeff Neuman: But I do not believe we can or should touch incorporation jorge cancio (GAC Switzerland): First is to assess problems - of all kinds. Second is looking to meaningful, reasonable means to adress such problems... Tijani Ben Jemaa: Why do we keep working with Google docs which is not acceptable to all. We should work on the Wiki. Also we need to start on the multi-layer jurisdiction. We need to agree on the layers. Greg Shatan: We can try to Wiki tool for one aspect such - maybe GAP analysis. - Commence Discussion of draft Scope/Focus Google doc (to be circulated) 4. Other Potential Inputs to our Work: - More Detailed Review of Lightning Talks (summarized in Staff Paper) - Pertinent Literature (influenced by Scope) - Experts/Legal Advice 5. AOB 6. Upcoming Meetings Greg Shatan: next meeting is 21 Sept. 1300UTC 7. Adjourn Greg Shatan: Adjourned.

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Link to Scope/Focus Document
by Greg Shatan Sept. 16, 2016

Sept. 16, 2016

All: As discussed on last week's call, a document has been started dealing specifically with proposed Scope/Focus/Main Issues for this Subgroup. Here is the link: https://docs.google.com/document/d/1N2eCmjbA6bxJxCEluEHJIBzP_sGPN6krEqDshA0… Greg and Vinay

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Notes, recordings, transcript for WS2 Jurisdiction Subgroup Meeting #2_8 September 2016
by MSSI Secretariat Sept. 15, 2016

Sept. 15, 2016

Hello all, The notes, recordings and transcripts for CCWG Accountability WS2 Jurisdiction Subgroup Meeting #2 - 8 September 2016 will be available here: https://community.icann.org/x/YhKsAw 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 Welcome/Admin Tatiana Tropina audio only for the moment. No changes to SOIs. Document: https://community.icann.org/pages/viewpage.action?pageId=61608546&preview=/… * Meeting Time Rotation Greg Shatan: will rotate between 1300 and 1900 slots leaving aside the 0500. May vary days of the week but will avoid 1900 on Friday. Kavouss Arasteh: could we shift 1900 to 2000? Bernard Turcotte: Schedule will be reviewed with change to daylight savings later in the fall. * Work Plan and Schedule Overview (attached). Looking to have a deliverable complete in February 2017. https://community.icann.org/pages/viewpage.action?pageId=61608546&preview=/… Greg Shatan: This work plan assumes we are a Complex project. Presentation of the slide. Milton Mueller: this schedule seems unrealistic to me. We take 2.5 months to develop a work plan and don't talk substance until December, then we complete our "deliverable" in only one month? David McAuley: We may be able to get into substance by asking participants to contribute to a gap analysis between the accountability framework that is being implemented vs its applicability vs jurisdictions. Greg Shatan: Need a rolling list of action items. The first item should be this gap analysis. Farzaneh Badii: Greg as to gap analysis you say in the doc that: I think there was a general conclusion that ICANN's current jurisdiction didn't result in any significant "gaps" relating to ICANN accountability. Whether there is a formal "gap analysis" is another question, and one we need to explore. David McAuley: Do not remember any formal gap analysis from WS1. This is about the settlement of disputes jursidiction. Kavouss Arasteh: there was no formal conclusion in WS1 that there was no gap. Kavouss Arasteh: was NOTa general conclusion that ICANN's current jurisdiction didn't result in any significant "gaps" relating to ICANN accountability. Whether there is a formal "gap analysis" is another question, and one we need to explore. Jorge Cancio (GAC Switzerland): We had very general discussions - that is what we did... Jorge Cancio (GAC Switzerland): anyway what is on the ws1 final papers is what represents our agreements... David McAuley: agree w/Kavouss re gap - we have to check * Plan to Develop Detailed Work Plan & Schedule * Plan for September/October (see attached) * Suggestions for overall Work Plan * Our Goal is a Deliverable * Discussion of Scope * Do we begin with Scope? * Jordan Carter lightning talk suggested being "upfront about our interests" * Detailed Reading of Google Doc (Staff Paper, as revised and annotated by Members of Subgroup) Kavouss Arasteh: Not in favor of Applicable Law? Greg Shatan: no issue since it is in Annex 12. David McAuley: disputes should include legal actions vs ICANN in various jurisdictions? Milton Mueller: so jurisdictional effects on two distinct things: 1) accountability mechanisms; 2) actual operation of policies (whatever that means) And by 2) we are referring primarily to dispute resolution jorge cancio (GAC Switzerland): At the same time we said that this refers "primarily" to 1) settlement of disputes, including choice of jurisdiction and applicable laws, what disputes "within ICANN" means could also be useful. Greg Shatan: Within ICANN implies actors within ICANN but it would seem undluly restrictive to say this only includes ICANN's internal dispute resolution processes. jorge cancio (GAC Switzerland): within ICANN I guess covers all parties affected by ICANN decisions and which may bring an internal claim against it. Kavouss Arasteh: why NOT NECESSARILY? David McAuley: From WS1 recollection the NECESSARILY comes in if the gap analysis notes that the accountability mechanisms are broken (material problem) because of jurisdiction. Edward Morris: My recollection is the same as David's David McAuley: Thanks Kavouss, and I think that is part of our task. Good question you asked. Milton Mueller: I think many of these points could be best pursued on the list, in writing David McAuley: +1 Milton Avri Doria: so ICANN is only incorporated in one place and these lesser 'registrations' do not affect jurisdiction? Registrations and their relation to incorporation are essentially different with respect to jurisdictional obligations? Is so where are jurisdictional issues related to multiple registrations dealt with? Vinay Kesari: Agree with Paul. I think ICANN has gone on record stating specifically that local offices are subject to local laws on issues such as employment. Kavouss Arasteh: best to use both email list and Google doc. As to this question is it not too detailed at this time? Avri Doria: what is the status of the ICANN presence in non-US jurisdiction? Greg Shatan: Action Item - this should be answered by ICANN legal. Samantha Eisner: We have to adhere to laws that allow us to have offices in different locations but I can confirm that we have not incorporated in any other location Samantha Eisner: ICANN typically is a "branch" location or a registered foreign office equivalent Jeff Neuman: I would like to know the difference between "Engagement Centers", "HUBs", "Offices", etc/ Avri Doria: Not incorporated? Also not registered as some sort of company? Jeff Neuman: Is there a way to get those definitions from ICANN staff? Jeff Neuman: I have to admit I never understood Fadi's distinctions Samantha Eisner: Yes, Jeff Greg Shatan: Will start the next version of the google doc and circulate. Vinay Kesari: Hi Avri, many countries (India for example) allow a foreign company to set up a representative/ branch office locally. This is not a separate legal entity, can't sue/ be sued. But it requires a registration * Creation of Scope Document? * Other Potential Inputs to our Work * More Detailed Review of Lightning Talks * Pertinent Literature (influenced by Scope) * Experts/Legal Advice * AOB * Adjourn Greg Shatan: Adjourned

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Agenda for today's meeting
by Greg Shatan Sept. 14, 2016

Sept. 14, 2016

All: Please see the agenda below for today's call. The Google Doc will be copied into PDF and word documents closer to the meeting, to allow continued comment today. *AGENDA* 1. Welcome, attendance, SOIs, etc. 2. ICANN's recently released IANA Stewardship Q&A, particularly #7 3. Scope discussion: - Continue Detailed Reading of Google Doc (Staff Paper, as revised and annotated by Members of Subgroup) - Commence Discussion of draft Scope/Focus Google doc (to be circulated) 4. Other Potential Inputs to our Work: - More Detailed Review of Lightning Talks (summarized in Staff Paper) - Pertinent Literature (influenced by Scope) - Experts/Legal Advice 5. AOB 6. Upcoming Meetings 7.Adjourn Greg and Vinay

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Committee Hearings on IANA Transition
by Greg Shatan Sept. 14, 2016

Sept. 14, 2016

All: There's quite a lot of discussion of jurisdictional issues in today's hearing. I hope we can get a transcript in time for next week's meeting. You may wish to tune in. Greg

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Fwd: [CCWG-ACCT] Answers to some common questions being encountered by the ICANN staff
by Greg Shatan Sept. 14, 2016

Sept. 14, 2016

All, In connection with our upcoming call, I wanted to call your attention to this ICANN statement, and in particular, item #7. Greg ---------- Forwarded message ---------- From: *Bruce Tonkin* <Bruce.Tonkin(a)melbourneit.com.au> Date: Friday, September 9, 2016 Subject: [CCWG-ACCT] Answers to some common questions being encountered by the ICANN staff To: "accountability-cross-community(a)icann.org" < accountability-cross-community(a)icann.org> From https://www.icann.org/iana-stewardship-questions Answering some of your questions on the stewardship transition By delivering the IANA stewardship transition proposal <https://www.icann.org/resources/pages/board-ntia-transmissions-2016-06-13-en> to the U.S. Department of Commerce's National Telecommunications and Information Administration (NTIA) in March, the global Internet community executed the largest multistakeholder process <https://www.icann.org/resources/pages/iana-accountability-participation-sta…> ever undertaken in Internet governance. The transition proposal achieved the broad support thousands of Internet stakeholders by reinforcing the current multistakeholder system and making ICANN more accountable to Internet users around the world. The proposal also garnered support from global representatives of industry, the technical community, civil society groups, academics, governments and end users. The timely completion of the transition will help preserve the continued openness of the Internet by entrusting its oversight with those who have made the greatest investments in its extraordinary success so far – the volunteer-based multistakeholder community. Still, some questions remain about the nature of the IANA functions, ICANN, and the likely impacts of the transition and we wanted to answer them for you in one place. 1. Does the transition threaten Internet freedom? No. The United States Government's contract with ICANN does not give the U.S. any power to regulate or protect speech on the Internet. The IANA functions are technical – not content – based. The freedom of any person to express his or herself on the globally interoperable Internet is in fact enhanced by the transition moving forward. ICANN is not, has not been, and by its Bylaws cannot become, a place for regulation of content. Ensuring that the Internet remains open, interoperable and stable in the long-term helps protect Internet freedom. Some believe that extending the contract may actually lead to the loss of Internet freedom because it could fuel efforts to move Internet governance decisions to the United Nations (U.N.). Former Homeland Security Secretary Michael Chertoff and retired Vice Chairman of the Joint Chiefs of Staff James Cartwright stated <http://www.politico.com/agenda/story/2016/06/keep-internet-free-and-open-ic…> that, "rejecting or even delaying the transition would be a gift to those governments threatened by a free and open Internet." 2. Will countries be able to censor speech on the Internet after the transition? No more so than they can today. Right now, there is nothing about ICANN or its contract with the U.S. Government that prevents a country from censoring or blocking content within its own borders. ICANN is a technical organization and does not have the remit or ability to regulate content on the Internet. That is true under the current contract with the U.S. Government and will remain true without the contract with the U.S. Government. The transition will not empower or prohibit sovereign states from censoring speech. Many leading civil society and advocacy groups <https://www.accessnow.org/cms/assets/uploads/2016/05/CSstatementonIANAtrans…> [PDF, 106 KB] actually argue that the transition will enhance free speech on the Internet. Human Rights Watch, Access Now, Article19, Open Technology Institute and Public Knowledge, support the transition because "executing upon the IANA transition is the best way to ensure the continued functionality of the global internet and to protect the free flow of information so essential to human rights protection." 3. Will ICANN be more susceptible to capture by a single entity after the transition? No. ICANN's multistakeholder model is designed to ensure that no single entity, whether country, business or interest group, can capture ICANN or exclude other parties from decision-making processes. Features of this model include open processes where anyone can participate, decisions made by consensus, established appeals mechanisms, and transparent and public meetings. These elements are all reinforced in the community transition proposal <https://www.icann.org/resources/pages/board-ntia-transmissions-2016-06-13-en> and have been building blocks for the free and open Internet we see today. NTIA, along with other U.S. Government agencies and a panel of corporate governance experts, conducted a thorough review of the transition proposal <https://www.ntia.doc.gov/report/2016/iana-stewardship-transition-proposal-a…>. NTIA confirmed that the proposal mitigated the risk of a government or third-party capture of ICANN after the transition. Columbia University's John Coffee also concluded that <http://www.newyorklawjournal.com/id=1202762978409/Adventures-in-Corporate-G…>, "ICANN has been given so many checks and balances that it is difficult to imagine a hostile takeover," after the transition. 4. Will ICANN seek oversight by the U.N. to maintain its antitrust exemption after the transition? No. ICANN is not, and never has been exempted from antitrust laws. ICANN has not been granted an antitrust exemption through any of its contracts with NTIA or the U.S. Department of Commerce. No court ruling in favor of ICANN has ever cited an antitrust exemption to support its ruling. This past July, NTIA Administrator Larry Strickling addressed the concerns <https://www.ntia.doc.gov/speechtestimony/2016/remarks-assistant-secretary-s…> about the possible antitrust liability of a post-transition ICANN and reaffirmed that "ICANN always has and will continue to be subject to antitrust laws." After the transition, ICANN will have no mandate, need or reason to seek to be overseen by another governmental or inter-governmental group for protection. NTIA also would not allow the transition to occur if ICANN were to replace the role of the U.S. Government with another government or inter-governmental organization. 5. Will governments have more control over the Internet after the transition? No. The transition proposal does not increase the role of governments over the Internet or ICANN as an organization. The multistakeholder model appropriately limits the influence of governments and intergovernmental organizations to an advisory role in policy development. More than 160 governments actively participate as a single committee and must come to a consensus before policy advice can be issued. After the transition, there will be times where the ICANN Board must give special consideration to the public policy advice of governments. However, this will only happen when there is no objection from any government in the committee – which includes the United States. This is a stricter requirement than is currently in place for government advice. In a March testimony before Congress <http://docs.house.gov/meetings/IF/IF16/20160317/104682/HHRG-114-IF16-Wstate…> [PDF, 103 KB], Intel Corporation stated that the transition proposal "strikes the right balance of including governments in a true multistakeholder community, while not giving them increased influence over ICANN's decisions," after the transition. 6. Does delaying the transition by one or two years have any negative consequences? Yes, any delay of the transition could have significant global consequences. The Internet is a voluntary, trust-based system. A delay would introduce uncertainty, for businesses and other stakeholders, which could have long-term business, social, cultural, political and economic impacts. This past March, U.S. Ambassador David Gross testified <http://www.commerce.senate.gov/public/index.cfm/hearings?ID=418B1D81-1F0B-4…> that, "the clearest impact [of a delay] is on the broader, global community. It will signal that the U.S. has changed its position and no longer believes in a private-sector led internet and that governments will play a primary role in making the final decision. Russia, China, and others will welcome such a decision." In addition, the Centre for International Governance Innovation added <https://www.ourinternet.org/press/statement-by-gcig-regarding-iana-transiti…> to this sentiment by expressing that "[A delay will] increase distrust, and will likely encourage some governments to pursue their own national or even regional Internets." 7. Will ICANN relocate its headquarters outside of the United States after the transition? No. ICANN will not relocate its corporate headquarters location after the transition. The transition proposal clearly states <https://www.ianacg.org/icg-files/documents/IANA-transition-proposal-final.p…> [PDF, 2.32 MB] that "the legal jurisdiction in which ICANN resides is to remain unchanged." California law is the basis for the new mechanisms created to empower the ICANN community and hold ICANN the organization, Board and community, accountable. In addition, ICANN's Articles of Incorporation are filed under California law, and its Bylaws state that ICANN's headquarters are in California. 8. Is it illegal to allow the transition to move forward without congressional approval because it is a transfer of U.S. property? No. ICANN is not aware of any U.S. Government property that would be transferred as a result of the transition. In a letter to Chairman Grassley and Chairman Goodlatte <http://www.ntia.doc.gov/files/ntia/publications/20160810_-_ntia_response_to…> [PDF, 1.25 MB] last month, NTIA stated that the Department of Commerce Office of General Counsel conducted a legal review of this issue and advised NTIA that transition would not result in the transfer of U.S. Government property, and that, in the view of the Department, the authoritative root zone file is not U.S. Government property. 9. Will Verisign have the ability to raise prices of.com domain names on 1 October 2016 as a result of the transition? No. The cost of .com domains is capped at $7.85 until 30 November 2018. The current pricing of the .com registry is defined by two separate contracts (1) the .com Registry Agreement between Verisign and ICANN; and (2) the Cooperative Agreement between Verisign and the Department of Commerce. After 2018, Verisign and NTIA will have to negotiate to change the terms for the Cooperative Agreement or agree to end the Cooperative Agreement before discussing new pricing of the .com domain with ICANN. In letters <https://www.ntia.doc.gov/files/ntia/publications/2016-8-31_doj_response_to_…> [PDF, 851 KB] to Chairman Cruz, Chairman Lee, and Chairman Duffy last week, the Assistant Attorney General stated that, consistent with past practices, it is expected that NTIA will seek the advice of the U.S. Department of Justice on any competition issues implicated by the extension of these two contracts. 10. Do the recent independent review process (IRP) decisions regarding applications for new generic top level domains prove that ICANN is not sufficiently transparent or accountable enough for the transition? No. An IRP is an accountability mechanism used to review and resolve a concern raised by the community over a policy decision made by ICANN. Any result from an IRP, whether positive or negative, demonstrates that the system of checks and balances built into the ICANN multistakeholder model works. The IRP has been enhanced to strengthen ICANN's commitment to employ open, transparent, bottom-up, multistakeholder processes after the transition. 11. Does ICANN have an operational relationship with the Chinese government? No. ICANN does not have any operational relationship with the Chinese Government. ICANN's engagement center in China is one of seven around the world. The presence of an ICANN engagement center or operational hub within a country does not imply any level of support for the nation's government or its policies.

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