This is not factually correct. Among those who commented on list, 11 expressed support for the decision, 2 commented without objection, 7 criticized it in part and supported it in part, and 2 objected completely. (FYI, the group has approximately 70 members.)
"it begun with the "out of scope" discussion and suddenly became "unlikely to find consensus" decision -- which are two very different things."
There was nothing "sudden" -- the discussion evolved based on the contributions of participants during the first of two full meetings on the subject and on the email list between meetings.
"It appears that it was triggered from some nervousness arising out of the responses to the questionnaire that was sent to the public, where many response spoke of need for clear institutional changes to the jurisdictional status quo."
This is factually incorrect. First, the speculation about how this came about is wrong. Not only was there no "nervousness", but there was no particular focus on the questionnaire responses.
Second, it is incorrect to say that "many responses" spoke of the need for "clear institutional changes to the jurisdictional status quo." The questionnaire wasn't supposed to be used to divine the popularity of certain viewpoints. It would be inappropriate to aggregate the responses to do so. However, if we were to "count noses," the statement would be wrong.
The Subgroup received 21 responses. 12 expressed no concerns about ICANN's jurisdiction in any way. 5 responses raised issues for the Subgroup, but did not call for institutional changes to the jurisdictional status quo (1 mentioned the concept but stated it was too early for such an examination. Only 4 responses called for institutional changes to the jurisdictional status quo. So, at most 5 out of 21 responses even contemplated such changes.
"in a single sweep not only the discussions on possible changes to the ICANN incorporation but the much more "easier to deal with" subject of tailored immunities for ICANN was banned to be discussed any further."
This mischaracterized what happened. The Co-Chairs' statement does not refer to "tailored immunities." As Thomas pointed out, that was not the focus of their concern, and that has since been clarified. The focus of the Subgroup discussion on immunity has been on broad sovereign-type immunities, so it should have been clear that this was the Co-Chairs' focus as well. it wasn't clear enough, so it has been clarified.
"In any case, it was the sub group chair's decision that we will come to "remedies" or institutional changes only after having listed out "issues" that need to be addressed."
This is set forth in the Subgroup's Work Plan; it was not my decision, though I support the Work Plan (which also intended for us to clarify issues of scope and focus at this point).
"whether sub group chair had submitted a report that the sub group's work is not able to be pursued."
I don't believe anyone suggested this had happened. But concerns have been expressed from various quarters that we are going in circles, and that our earlier decision not to clarify the breadth of our work was a strong contributing factor.
"Strangely, the sub group chair has been presenting this as entirely the CCWG chair's decision."
Nothing strange, just the truth.
"Subsequent to the strong reactions to the decision,"
As noted above, there were only a few reactions that did not favor the decision, and there were "strong reactions" going in both directions.
I hope this helps better frame the discussion for the Plenary.
Greg
All
Since I will not be able to attend today f2f meeting I wanted to share some points.
The main issue for the meeting, in my understanding, is to deal with the sudden decision of the CWCG chair about what the sub group should and should not do. It is clear that this decision has been found faulty and criticised by majority of participants in the e-discussions here, even those who otherwise may agree with not pursuing the course that the Chair unilaterally forbid us from taking. The decision is simply procedurally wrong, and must be dumped... Among other things, it begun with the "out of scope" discussion and suddenly became "unlikely to find consensus" decision -- which are two very different things. Almost everything is wrong with the manner in which the decision was imposed on the group.
It is evident that there was a premeditated attempt - I dont know among or at the behest of whom - to simply gag the jurisdiction discussion, which happens to be one of the most important topics since the start of the transition process, and even much before.. It appears that it was triggered from some nervousness arising out of the responses to the questionnaire that was sent to the public, where many response spoke of need for clear institutional changes to the jurisdictional status quo. The conspiratorial basis of this decision is also highlighted by how in a single sweep not only the discussions on possible changes to the ICANN incorporation but the much more "easier to deal with" subject of tailored immunities for ICANN was banned to be discussed any further.
There has been simply no grounds for this....In any case, it was the sub group chair's decision that we will come to "remedies" or institutional changes only after having listed out "issues" that need to be addressed. The sudden parachuting in of the CCWG chair's decision therefore looks even more problematic, and smells of something quite not right going on behind the curtains.
Neither there was enough ground-work done towards reaching this decision that goes to the very heart of the sub group's work. If there is any claims of due process in ICANN, we need to simply strike down the decision, and start anew with whatever concerns there may be that precipitated this crisis.
The Chair must explain why he made this problematic intervention, and whether sub group chair had submitted a report that the sub group's work is not able to be pursued. Strangely, the sub group chair has been presenting this as entirely the CCWG chair's decision. What did CCWG learn, from where, and what was his chain of reasoning to make this decision? Did he hold any closed group or individual consultations? We must be told what really happened.
Subsequent to the strong reactions to the decision, CCWG chair must withdraw it, or the CCWG assembly should force it to be withdrawn. It is wrong in process, and it cannot now be attempted to be corrected post-facto by admitting some substantive changes. The process itself is sacrosanct, and must be upheld, independent of the nature of substantive views in the group.
I suspect that the decision will be attempted to made palatable by making marginal concessions on it, but that I insist is not the point. Upholding due process, and resisting abuse of process and power must be our first and main priority today.
parminder
On Tuesday 20 June 2017 12:46 AM, Mueller, Milton L wrote:
Sorry if I missed the boat, Greg, but I did review the emails on the list fairly extensively before commenting, and it sure looked like we were having a scope debate rather than a substantive debate. It is possible that the initial framing as a scope debate triggered a lot of responses and emotions that the overall dialogue never got beyond.
One of the problems with framing it as scope is that it lets those who want to argue for a change in the jurisdiction/place of incorporation off the hook. They can make perfectly reasonable and convincing arguments that it is not out of scope, even if they are unable to demonstrate a clearly superior alternative to California law that is compatible with the WS1 accountability mechanisms.
Let’s get out of that rut.
I think the subgroup has done more extensive quality work than people who are watching it day to day realize.
· We have clarified the set of problems we face with the layer model;
· We have reviewed most of the relevant court cases (still ongoing);
· We have identified specific problems with U.S. jurisdiction (OFAC and similar US-imposed sanctions);
· We have discussed the US Immunities Act, and with one or two exceptions agreed that it would not be a good path to take
· We have discovered that those who most want to move it out of California cannot name or identify a specific, superior location/jurisdiction, but must instead appeal to “international jurisdiction,” which means a new international treaty and new organizational arrangement that would require re-doing the entire transition process.
Let’s reach consensus on two simple points:
1. There ARE problems of accountability caused by U.S. jurisdiction, notably around OFAC sanctions
2. There is no reasonable prospect of improvement to come from uprooting ICANN, completely changing its legal status and moving to an unknown and as yet undeveloped alternative
From: Greg Shatan [mailto:gregshatanipc@gmail.co
m ]
Sent: Monday, June 19, 2017 12:44 PM
To: John Laprise <jlaprise@gmail.com>; Mueller, Milton L <milton@gatech.edu>; ws2-jurisdiction <ws2-jurisdiction@icann.org>
Cc: acct-staff@icann.org
Subject: Re: [Ws2-jurisdiction] Question Presented
Milton,
I actually agree with you, up to a point. The slide you refer to was a strawman and a jumping-off point for discussion. By the second call, last week, we had moved away from that slide and from discussing the issue in terms of scope. The CCWG Co-Chairs instead framed the issue around the question "what will get sufficient traction in the group" vs. subjects that will not get sufficient traction, and thus would not lead to a consensus recommendation.
However, I don't think this was an instance of anyone preempting a discussion, much less dishonestly. As noted, no issues have been foreclosed by the Co-Chair's decision, which is aligned with your point #2 -- the "lack of traction" for recommending changes to ICANN's corporate status. I hope that everyone is interested in substantive debate, and I hope to see plenty of it in this group in the coming weeks.
Best regards,
Greg
On Mon, Jun 19, 2017 at 10:41 AM John Laprise <jlaprise@gmail.com> wrote:
From: ws2-jurisdiction-bounces@icann
.org [mailto:ws2-jurisdiction-bounces@icann.org ] On Behalf Of Mueller, Milton L
Sent: Monday, June 19, 2017 9:40 AM
To: Greg Shatan <gregshatanipc@gmail.com>; ws2-jurisdiction <ws2-jurisdiction@icann.org>
Cc: acct-staff@icann.org
Subject: Re: [Ws2-jurisdiction] Question Presented
Please pardon my late intervention. We were presented with this question:
Question: Is considering or recommending changes to ICANN's status as a not-for-profit California corporation within the scope of the Subgroup?
Two things seem obvious to me:
- The issue IS within the intended scope of the subgroup, and
- There is overwhelming consensus AGAINST recommending changes to ICANN’s status as a nonprofit California public benefit corporation.
It seems to me that most of the debate is confusing issue #1 with issue #2. The entire discussion has not developed any real alternative, much less a clearly superior one, to California jurisdiction. The identified problems with US jurisdiction (mainly OFAC) can be addressed without moving ICANN’s place of incorporation. So let’s stop trying to dishonestly pre-empt resolution of the jurisdiction issue by ruling certain discussions “out of scope.” Let’s resolve it honestly by developing and acknowledging consensus around the fact that other than the meaningless mirage of “international jurisdiction” there is no better framework within which to work than California law.
The debate about scope, in other words, is a diversion from the substantive issue, and I wish the chairs and the Americans in the subgroup would stop trying to pre-empt substantive debate with scope debate.
I will not be in Johannesburg so I hope people who agree with me can take this perspective into the f2f meeting.
Dr. Milton L. Mueller
Professor, School of Public Policy
Georgia Institute of Technology
From: ws2-jurisdiction-bounces@icann
.org [mailto:ws2-jurisdiction-bounces@icann.org ] On Behalf Of Greg Shatan
Sent: Thursday, June 8, 2017 9:29 AM
To: ws2-jurisdiction <ws2-jurisdiction@icann.org>
Cc: acct-staff@icann.org
Subject: [Ws2-jurisdiction] Question Presented
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