Dear Raphael, Thank you for your comments. I'll just make two brief observations about one suggestion you make. That is, in your words, "we should agree not to consider that specific point" (that specific point being, as I understood it, "where else [ICANN's place of incorporation or headquarters' location] could be better" ). Let's say this is fine. But if we were to assume that ICANN's place of incorporation cannot be changed, still we cannot ignore the fact that ICANN's localisation does have an impact on the actual operation of policies and functions by ICANN. And according to the Jurisdiction section of Annex 12 of the CCWG-Accountability Final Report, where the mandate of the SWG is set in detail, the influence of that very fact (ICANN's location) appears among the "main issues" to be investigated by the SWG (- it is certainly not excluded from it). This is how the relevant part reads: "the main issues that need to be investigated within Work Stream 2 relate to the influence that ICANN´s existing jurisdiction may have on the actual operation of policies and accountability mechanisms." Now, assuming as we may that ICANN's headquarters are not going to move anywhere in the world, it is still within our mandate to examine the consequences of ICANN's physical presence within California (and particularly the presence there of its main business activities and the like) on ICANN's ability to perform its functions. It is only once this impact and the related problems have been duly identified and assessed, that we can start considering how to solve or mitigate them. The solutions, obviously, may not require a change of ICANN's place of incorporation, for example, and that's indeed why some people have started considering ideas as the granting of jurisdictional immunities to ICANN, etc. So, even if we were to assume that a change of ICANN's place of incorporation cannot happen, this does not preclude the SWG from examining other solutions to the problems it is mandated to identify and assess, nor for that matter does it preclude the SWG from identifying and assessing these problems. The above is consistent with the approach the SWG appears to be following, which is to identify problems before proposing the remedies. So, again, the alleged impossibility of changing ICANN's main place of business, among other things, in no way limits our mandate. A second remark I would like to make is this: I think you are right, Raphael, when you say that it would take agreement among the SWG members to exclude from our mandate "that specific point" related to ICANN's location. In fact, to the extent the SWG is mandated to consider among other things "that specific point", an agreement to change and limit the group's mandate perhaps should not even come from the SWG, but from the CCWG-Accountability or even higher instances. Avec mes meilleures salutations, Thiago Thiago Braz Jardim Oliveira Divisão da Sociedade da Informação Ministério das Relações Exteriores +55 61 2030 6389 -----Mensagem original----- De: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] Em nome de ws2-jurisdiction-request@icann.org Enviada em: quinta-feira, 25 de maio de 2017 14:15 Para: ws2-jurisdiction@icann.org Assunto: Ws2-jurisdiction Digest, Vol 11, Issue 27 Send Ws2-jurisdiction mailing list submissions to ws2-jurisdiction@icann.org To subscribe or unsubscribe via the World Wide Web, visit https://mm.icann.org/mailman/listinfo/ws2-jurisdiction or, via email, send a message with subject or body 'help' to ws2-jurisdiction-request@icann.org You can reach the person managing the list at ws2-jurisdiction-owner@icann.org When replying, please edit your Subject line so it is more specific than "Re: Contents of Ws2-jurisdiction digest..." Today's Topics: 1. Continuation of the discussion on SWG mandate (Rapha?l BEAUREGARD-LACROIX) 2. Questionnaire analysis (Thiago Braz Jardim Oliveira) 3. Re: Questionnaire analysis (Arasteh) ---------------------------------------------------------------------- Message: 1 Date: Thu, 25 May 2017 16:50:11 +0200 From: Rapha?l BEAUREGARD-LACROIX <raphael.beauregardlacroix@sciencespo.fr> To: ws2-jurisdiction <ws2-jurisdiction@icann.org> Subject: [Ws2-jurisdiction] Continuation of the discussion on SWG mandate Message-ID: <CANu+Qfzy83h5gU9oPb=DQ_BnVtuPbZOAc2gmpn8WbGoGdn-EcA@mail.gmail.com> Content-Type: text/plain; charset="utf-8" Dear all, I could not attend last call, but I had a look at the transcript and here are my 2c. This is also meant to serve as a start a discussion, so feel free to debate, challenge, refute, ... I don't have the ICANN experience that some of you have, but from what I understand it is preferable to keep ourselves focused on our precise task, which means *excluding *from consideration re/incorporation (or whatever you want to call it) of ICANN outside of California and/or US. Not because this precise issue is not an issue. I am convinced it is, and should certainly be discussed, especially considering long term. However we will not "square" this "circle" in this subgroup. I think if we want to produce something that will see some use, we should focus on how jurisdiction issues interact with the accountability of ICANN, assuming that ICANN stays as it is roughly speaking, so with the current organisational setup. It is true that in jurisdiction we can include the location where ICANN is incorporated. This has an effect on accountability, to the extent of California corporations law and any other Californian or US federal law I might not be aware of. However I don't think we are there to consider *where else *could be better, because the options are just too many, too different and entail radical change in the foundations of ICANN which are just beyond what we are supposed to do, I think. So rather than radical changes, we should aim at improvements of "the existing," so mechanisms, structures, contracts... So to conclude on that point, we should not overly restrict what layers of jurisdiction we consider, but I think we should agree not to consider that specific one. Thiago in the last call rightly mentioned that "accountability" is an open and equivocal concept. I think we should interpret it broadly. In that sense and referring to the CCWG charter that Greg circulated before, accountability can be framed as a system of "checks and balances." While this concept is distinctively American, I think we can agree that accountability evokes responsibility and justification for action. I would conceive improving ICANN's accountability as a process that would improve *predictability *of ICANN's actions as well as improve the understanding stakeholders have of ICANN's interests, motives, reasons for doing A and not B, etc. In that sense accountable shares some meaning with transparent, but not completely. Transparency is one component of accountability. "Raw" transparency is rather useless, to the extent that the ordinary person involved with ICANN at volunteer level is not able to sift through the mass of documents or understand what is going on. If we now consider jurisdiction, which is also a broad and equivocal concept, it may intersect accountability at several levels (the "layers" of jurisdiction). I don't think it is possible to realise the extent of this intersection just as a reflection exercise. In that regard I think that both the questionnaire and the case studies are useful so to distinguish what these intersection points may be. These two things (cases and questionnaires) are pretty much the only "empirical" means that we have at our disposal and they are certainly better than just abstract reflections on the question of jurisdiction and accountability... And finally to contribute to something that was discussed in the call, I think it is a good idea to further inquire on the questionnaire responses with the respondent, when such inquiry can shed further light on the response. So these discussions should not be a debate with the respondent over their answers, but more us listening to what they have to say (again when relevant; if answers are just straight no's then whatever) Best, -- Rapha?l Beauregard-Lacroix Sciences Po Law School 2017 LinkedIn <https://www.linkedin.com/in/rapha%C3%ABl-beauregard-lacroix-88733786/> - @rbl0012 <https://twitter.com/rbl0112> - M: +33 7 86 39 18 15