Kavouss,

First, let me wish you and the other members of the Jurisdiction subgroup a Happy and Healthy New Year. I will also extend these wishes to the other members of the GAC, as you have chosen to send a copy of your email to that group.

This email seems both premature and disproportionate, when only two emails were sent in this thread expressing concerns with Question 4. Indeed, only a few participants had the opportunity to respond at all after my email was sent on Friday, since we are in the midst of a holiday period. As such, nothing has been decided, and the responses of most participants have not yet been received. As such, I was quite surprised to see an email seek to short-circuit an ongoing discussion.

The content of the email is also surprising, as it consists of a series of dramatic and unsupported assertions that are quite corrosive, both to the group and to many individual participants. I think that the subgroup would be far better served by sticking to the substance of the issues and seeking to work together and work through the issues. On December 25th, I wrote in an email to the subgroup:

We need to pay attention to how we engage with each other, and we need to emphasize engagement on ideas and substance.
Based on my participation in a number of working groups over the years, I've observed the following: In order to develop broad support for positions or decisions in any working group or subgroup (including this one), it is necessary for participants to strive to do three things:
-- Listen: Take the time to understand the views of others in the group; don't dismiss views without considering their substance
-- Persuade: Try to persuade others (through fact and logic) why your view makes sense and should be adopted; don't attempt to impose your view (e.g., by saying something "must" be done)
-- Compromise: For a position to get broad support, it will need to reconcile opposing viewpoints. Participants will often need to move away from initial positions and "absolutes" to find common ground; the ultimate result may not be exactly what any participant or group of participants want.
Without listening, persuasion has no chance to work. Without trying to persuade, others will not move to embrace your views. Without compromise, we will not arrive at positions that have broad support.
The focus needs to be on facts, on ideas, on reasoning together. Focusing on identities and not on ideas will not lead to success. Playing up divisions based on identities does not lead to common ground.
In my view, we need to work together as a group and concentrate on substance in order to be productive.

I wish that you had taken this to heart, rather than sending your email. Perhaps you missed my email. However, these concepts echo ICANN's Expected Standards of Behavior, with which you are certainly familiar:

Listen to the views of all stakeholders when considering policy issues. ICANN is a unique multi-stakeholder environment. Those who take part in the ICANN process must acknowledge the importance of all stakeholders and seek to understand their points of view.
Work to build consensus with other stakeholders in order to find solutions to the issues that fall within the areas of ICANN's responsibility. The ICANN model is based on a bottom-up, consensus driven approach to policy development. Those who take part in the ICANN process must take responsibility for ensuring the success of the model by trying to build consensus with other participants.

The only way that this subgroup, or any subgroup or Working Group, will succeed is through building consensus (i.e., rough consensus). As the Standards of Behavior note, it is the responsibility of each participant to try to build consensus. It is antithetical to the consensus-building process to attempt to divide the subgroup into factions (or "camps") and to state that a large group of participants are opponents of the multistakeholder process (among many other unfortunate accusations, theories and characterizations below).

If you want all four questions to be sent out, you need to help build consensus in the subgroup that this is the right result, and you need to help the subgroup look for a form of question 4 that would get the broadest support. If you look at the email at the beginning of this thread, you will see that this is what I was trying to do (with no guarantee of success, of course). I don't think this email helps that process, to say the least. As such, it would seem that this email has exactly the opposite effect than was intended (unless the intended effect was something else entirely, such as an attempt to cause the failure of the subgroup or an attempt to force a result through something other than consensus-building).

Perhaps force of habit leads to looking at all ICANN participants through the prism of nationality or national interest. This is a very counterproductive approach in a Cross-Community Working Group (a relatively recent and still evolving experiment in ICANN working methods). These incorrect assumptions can lead to other even more negative behaviors, such as stereotyping participants and conspiracy theories, and even attempts to delegitimize other participants. Participants have different viewpoints and different opinions and come from different stakeholder communities, and should not be mushed together solely due to nationality. Such reductive and oppressive approaches should be disregarded and discarded, here as elsewhere.

It is quite exceptional to assert, without any basis, that an array of participants from different stakeholder communities are somehow "together in a well-orchestrated arrangement" on a "special mission" "protecting a particular group," solely based on their nationality. I am not aware of any such orchestration or collusion. It is even more remarkable to assert that this nationalistic "orchestration" extends to outside counsel engaged to assist the CCWG in its work.

I note that this very email thread proves the fallacy of this line of thinking. Three US participants responded to this thread; two raised concerns with Question 4, while the third supported Question 4.

I do not know who you speak for when you say "We," but if you do speak for a group of participants in the subgroup, that is the only "orchestration" I know of in this subgroup. I hope that there are few, if any, others who believe that this extreme approach is fruitful. I am concerned that

the effect (if not the intent) of

this email

could

be to

sow division instead of building consensus, to undermine rather than support the work of the subgroup,

to denigrate and even delegitimize participants rather than to treat them with respect and to "seek to understand their points of view

and to bring about the failure of this subgroup, the CCWG and even the multistakeholder model, instead of working to support, strengthen and succeed on all these fronts.

Instead, I hope that most, if not all, of the other participants in the subgroup are committed to working together, to supporting the work of the subgroup, to discussing matters of substance, and to working within and "ensuring the success of the [multistakeholder] model." This model requires commitment, a recognition that the work is sometimes messy, and a recognition that consensus requires compromise. It's a model I strongly believe in, even when the results are less than optimal from my point of view (or from the point of view of my stakeholder community). Indeed, the strength of one's commitment to the model is revealed when things aren't going one's way.

I hope that you will reconsider your position and continue to work with the rest of us to support the subgroup and its work, rather than seek to stand in its way and stop its work. I look forward to your further positive contributions to the substance of the issues before us as we continue our work.

Best regards,

Greg

On Sat, Dec 31, 2016 at 5:35 PM, Kavouss Arasteh <kavouss.arasteh@gmail.com> wrote:

Dear All,

People continue to push deleting Q4 .This is aggressive, selfish, narrow minded and divisionism. These people are all from one sector ,one country and opponent of multistakeholder.

They have a special mission to maintain the existing Jurisdiction which certainly protect them and disregard the others. If we look at their affiliation it is not surprising what they push for.

I assure you, either all 4 Questions or no questions.

Such counting is not valid due to the fact that an overwhelming majority are coming from one single country .These are those who impose us the current stru8cture of WS1 designed by lawyers from one country well paid and well done for that country.

They are protecting a particular group ,they are all together in a well-orchestrated arrangement.

They are, in fact against global multistahkeholder .

Their actions would certainly have counter reactions by others.

We will raise awareness of others in all fora.

What we did to laisse everybody was a mistake. We should have be more cautious to oppose to such single country stakeholder.

Sonner we will have open consultation on the internet in which we made every thing xclear to the people.

Please look at the opponents of question 4 . who they are ? where they come from ? whom they protect .

The answer is crystal clear.

I am suggesting to the CCWG CO-CHAIR TO STOP SUB GROUP ACRTIVITIES .

This sub group is influenced by few individual acting against thousands opf person who do not have the opportunity to participate and contribute.

They have no expertise. They have have resources.

Silence does not means no views nor does it means agreement .

We oppose to the holding of the meeting of 05 Januray. It serves nothing but protect these people from one single country.

Co- Chairs.

You need to intervene and instruct and advise.-

Regards

Kavouss

2016-12-31 23:13 GMT+01:00 Kavouss Arasteh <kavouss.arasteh@gmail.com>:
Dear All,
People pèreventing us to progess by pushing for Q

2016-12-31 22:00 GMT+01:00 McAuley, David <dmcauley@verisign.com>:

Thank you Greg for trying to help us navigate this difficult discussion.

If we somehow end up with questions 1-4 then I would support your strawman, except for the preamble where I support the proposed preamble.

In the meantime I am puzzled by where we find ourselves.

The poll regarding the proposed questions had 31 respondents. Questions 1-3 were supported by very wide margin, 29-2. Question 4 was supported by a very narrow margin, 17-14. And what amounted to question 5 (“If Question 4 is not approved, I support sending out a questionnaire containing only Questions 1-3”) was supported by a vote of 19-8 (with 4 not answering), a far greater margin than Q4.

What happened to the notion of sending Q’s 1-3 without Q4 based on the polling results? Question 5 decided Question 4 and the format of the survey already. As suggested by others, we should not waste any more time on this.

I suspect the questionnaire will be the primary focus of our call on Thursday Jan. 5. I will re-read a number of e-mails on the various sides of this issue and comment then.

But anticipation of that call raises a point that I believe is making our task more difficult. Participation rates are low, not just here but across WS2. Given the length and intensity of WS1 that may be understandable, nonetheless we are grappling with issues/questions that seem better suited to a forum other than WS2.

Back in September I wrote on list why I thought ICANN’s location was out of our scope – I stand by that e-mail (http://mm.icann.org/pipermail/ws2-jurisdiction/2016-September/000099.html). The questions we are wrestling with on list now seem far beyond our ability to answer, much less fix.

I am not saying the questions are improper or should never be raised – I am saying that they appear beyond our scope and capability.

David

David McAuley

International Policy Manager

Verisign Inc.

703-948-4154

From: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Greg Shatan
Sent: Friday, December 30, 2016 2:27 AM
To: ws2-jurisdiction@icann.org
Subject: [EXTERNAL] [Ws2-jurisdiction] REMINDER: Focus, Working Method and Revisions to Proposed Questions: RESPONSE REQUESTED [was: Jurisdiction Proposed Questions and Poll Results]

REMINDER to READ this email and RESPOND, at least with regard to the questionnaire (see attachment). I've slightly revised the email for clarity.

To try and focus this discussion, I'll provide a strawman for how to deal with the alternatives:

Preamble -- Use Alternative 1.

Question 1 -- Use Alternative 1.

Question 2 -- No change

Question 3 -- No change.

Question 4 -- Use Alternative 1.

Thank you for your responses.

---------- Forwarded message ----------
From: Greg Shatan <gregshatanipc@gmail.com>
Date: Tue, Dec 27, 2016 at 3:28 PM
Subject: Focus, Working Method and Revisions to Proposed Questions: RESPONSE REQUESTED [was: Jurisdiction Proposed Questions and Poll Results]
To: ws2-jurisdiction@icann.org

All,

I'm sending this to the Jurisdiction subgroup list, since this was initially send to a discussion thread on jurisdiction taking place on the CCWG list.

Please respond here, rather than there. Thank you.

Greg

---------- Forwarded message ----------
From: Greg Shatan <gregshatanipc@gmail.com>
Date: Tue, Dec 27, 2016 at 2:56 AM
Subject: Re: [CCWG-ACCT] RES: Jurisdiction Proposed Questions and Poll Results
To: "accountability-cross-community@icann.org" <accountability-cross-community@icann.org>

All:

Two quick but important points:

1. We have strayed from the basic topic in front of us, which is to decide on the formulation of the questions to be sent out.

I have gone through the emails and meeting notes and pulled the alternative formulations and revisions in to a single document, attached to this email.

With regard to question 4, I believe that the best way to move forward is to see if one of the alternatives gets stronger support within the CCWG. If we can get to a point where there is broad support for the question without significant opposition that may resolve issues relating to whether and when this question will be sent out.

2. Our overall agreed-upon working method is to first identify, discuss and arrive at a list of

problems

, and then move on to identifying, discussing and arriving at a list of potential remedies for each

problem

on our list. We are still working on

problems

. For a remedy to be up for discussion when we move to discussing remedies, that remedy needs to provide a solution to a

problem

. We can't discuss a potential remedy without having a

problem

it is intended to solve. If there is a potential "remedy" but it does not solve any of our

problems

, we won't discuss it.

We've already put aside one potential "remedy" until we see whether we identify any

problems

it would solve -- the "remedy" of changing ICANN's jurisdiction of incorporation or headquarters location. "Immunity" is another potential remedy that we need to deal with the same way. Skipping forward to discussions of remedies is only slowing down our discussion of

problems

. I strongly suggest we refocus on

problems

, so that we can get to the discussion of remedies. Once we've agreed on a list of

problems

, a discussion of remedies will be more productive.

Our working method of dealing with

problems

first and then remedies may also help us find agreement on a way to deal with question 4. Questions 1-3 clearly deal with issues. Perhaps a version of question 4 that is limited to asking for

problems

will get broader support ("Alternative 1" on the attachment may fit this description.)

Greg

The following responses were received on the Accountability list:

Parminder:

Greg/ All

I think the Alternative 1, which you take as likely candidate for broader support, is fine. I list this formulation below:

What are the advantages or disadvantages, if any, relating to ICANN's jurisdiction*, particularly with regard to the actual operation of ICANN’s policies and accountability mechanisms? Please support your response with appropriate examples, references to specific laws, case studies, other studies, and analysis. In particular, please indicate if there are current or past instances that highlight such advantages or problems.

(* For these questions, “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.)

ENDS

Lets move on with it. We are spending too much time on framing a question.

Kavouss Arasteh:

Grec,

Tks again,

As I said I believe ,it is counter productive to discuss many alternative,

I could agree with formulation of Parminder

Regards

Kavouss

Sam Lanfranco:

Greg,

Thank you for presenting alternatives for reaching agreement on a Roadmap for Moving Forward to identify operational issues embedded in the overall “jurisdiction” issue. It is important to recognize that what is being proposed is the choice of roadmap for moving forward. Where this takes us will flow from the assembly of evidence, the application of analysis, and the resulting array of possible options for addressing jurisdiction base operational issues.

Sam Lanfranco

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