All,
Let me take this opportunity to clear up some apparent misunderstandings.
First, "immunity" is a potential remedy, not an issue. This has been clearly stated at multiple points in the work of this Subgroup. As such, there is clearly no expectation that immunity (or the lack thereof) (or any other remedy) will be discussed when stating a proposed issue.
Of course, we have also asked at this time that proposed issues be accompanied by a proposed remedy or remedies. However, the proposed remedy(ies) can be whatever the proposer thinks is appropriate. There is absolutely no requirement that immunity of any sort be proposed as a remedy in response to any issue. As such it should be clear that there is no
Perhaps what Thiago is recalling is a guideline that, if anyone does choose to propose immunity as a remedy to any issue, that the scope of that immunity needs to be stated as specifically as possible. This is related to the decision that this group would not further explore "general" immunity as a remedy to any issue, but only limited or qualified immunity. This specificity would cover the activities that should be immune, the laws and elements of "jurisdiction" that would be subject to that immunity (ability to sue and be sued, legislative, regulatory, etc.), and the jurisdiction(s) that would be subject to that immunity. It would be also be helpful to have some consideration of how this immunity would be achieved; while not necessary, it may help the group determine whether such a proposed remedy is practical and feasible.
With regard to Thiago's email of August 19 (which I'll note was addressed to "Dear Greg, Dear All"), I believe that lack of response by the group indicates that the idea expressed there gained no traction with the group. For clarity, I'll put it below, in its entirety:
Dear Greg,
Dear All,
Mindful of the constraints of time, and with a view to advancing towards a final report around which consensus might form, may I request that participants who are generally opposed to granting ICANN immunity provide examples of ICANN’s activities that they believe should continue to be subject to the normal operation of national laws?
I am sure we can benefit from the expertise of many participants in the subgroup, and would recall in this respect an email sent by Mike Rodenbaugh on 21 June 2017, who admittedly is “one who fights ICANN in many legal matters, on behalf of clients from all over the world”. Mike said he would like to “have a chance to refute such thinking [that ICANN should be immune from national courts] with real-world examples that have already happened or all still ongoing.” http://mm.icann.org/pipermail/ws2-jurisdiction/2017-June/001149.html
Best regards,
Thiago
This request seem like an attempt to flip the "burden of persuasion" from those who would propose a remedy to those who do not support it, and also seems to run directly counter to the guideline that any proposal of immunity be expressed with specificity. Given these problematic characteristics of the suggestion, and the lack of any support for it on the list, it does not appear that this request should be part of our approach.
While any participant is free to oppose a remedy in a variety of ways (including by suggesting particular circumstances where it should not apply), that does not appear to be an appropriate requirement for responding to suggested remedy. This is particularly true when it comes to the proposal of immunity as a remedy, where our predicate for discussion is that such a proposal needs to be limited and specific.
Of course, the Subgroup as a whole could come to a different decision. However, I would caution us on spending much of the limited time we have discussing process but rather stick to substance and to seeking to persuade the Subgroup that particular proposed issue or proposed remedy has merit.
Since Thiago's suggestion that "it will be critical that the participants who support ICANN's subjection to US jurisdiction identify and explain which of ICANN's activities they believe should necessarily continue to be subject to the normal operation of national laws and tribunals" is basically a restatement of his earlier email (as he notes), there's no need to discuss it separately.
Finally, to be clear, when we discussed the guideline that any proposal of immunity be expressed in a limited and specific way, there was no implication that this was "so that ICANN be no less accountable to other countries than it is to the United States and US stakeholders." (Nor was there an implication that this group has concluded that ICANN is "less accountable to other countries than it is to the United States and US stakeholders.") There appears to be an attempt to bolster this through mentioning that the Charter refers to the Netmundial definition of accountability, and then to argue that this reference means that Netmundial was "expressly relied on in the Charter of W2 to define ICANN's accountability goals, and from there to argue that we need to satisfy elements of Netmundial that do not appear in our charter.
The mention of Netmundial is actually quite narrow, and provides no support for these leaping contentions. Specifically, the Charter reads:
During discussions around the transition process, the community raised the broader topic of the impact of the change on ICANN's accountability given its historical contractual relationship with the United States and NTIA. Accountability in this context is defined, according to the NETmundial multistakeholder statement, as the existence of mechanisms for independent checks and balances as well as for review and redress.
[emphasis added]
I do not see how this limited citation to the Netmundial statement, to define Accountability as "the existence of mechanisms for independent checks and balances as well as for review and redress," supports the idea that the Netmundial statement defines ICANN's accountability goals. I went back to the Charter to see if there was another mention of Netmundial that might provide a coherent basis for this line of thought, but this is the only mention of Netmundial in the charter. As such, it seems the intent is that Netmundial is cited purely for the idea that Accountability is the existence of mechanisms for independent checks and balances as well as for review and redress and not for some broad idea that the jurisdictional roles of all countries with regard to ICANN need to be identical.
In any event, I think our road to completion relies on concrete discussions of proposed issues (and finding broad support for some or all of these as actual issues for this group to consider resolving) and proposed remedies, leading to broad support for particular issues and remedies. I hope we can focus on that over the next several weeks.
Best regards,
Greg