Pedro,

At no point has anyone ever suggested that we should "only make recommendations based on problems/issues identified in the past."   That is a fallacy, and had no bearing on what type of solicitation we are going to make.  Therefore, it's inappropriate to cite that mistaken idea as support for any proposition.

It has always been our plan to look at "perceived risks and threats" -- and also at perceived advantages and protections -- "that the current jurisdictional arrangement entails."  That is what we have been doing.  The lack of fact-based experiences coming from within the group led to the suggestion that we quickly solicit such experiences from outside the group.  That's all that was intended in this exercise.

I do not see this question as being in any way "evidence based" merely because it asks for "evidence."  In any event, what we are trying to achieve is an "experience-based" inquiry, not merely an "evidence based" inquiry.  I also note that the question exhibits a high degree of bias -- it only asks about "problems" and "interference".  An unbiased question would also ask about advantages and protections, and ways in which the current jurisdictional arrangement supports ICANN's ability to carry out its mission.  i also find the focus on the concept of the "jurisdiction of the US state over ICANN," to be quite puzzling.  The primary focus of this group has been on the effects of "governing law" (whether it results from a legal or physical location of ICANN or from a contractual provision, etc.)  and not on some idea that the US Government is somehow poised to strike and exercise unilateral power over ICANN in some undefined (and possibly non-existent) fashion.

If some version of this question is asked at all (after resolving the serious issues in its construction), it should be asked of members of this group.  Opinions and analysis are the heart of any working group's work.  This work should not be "crowdsourced."

Meanwhile, I note that the Google Drive document we are actually supposed to be working on has not been touched since November 14 (other than some minor edits I made on November 21).  That's two weeks in which our work could have advanced, but did not.  As noted before, we need to refocus on our work in progress if we are going to make progress.

Greg 

On Mon, Nov 28, 2016 at 4:07 PM, Pedro Ivo Ferraz da Silva <pedro.ivo@itamaraty.gov.br> wrote:

Dear subgroup colleagues,

 

I would like to support Parminder's rewritten question below. I believe it perfectly complies with the general requirement of a evidence based approach and it complements the two original questions since it introduces the element of future likelihood.

Our group should not only make recommendations based on problems/issues identified in the past, but also on perceived risks and threats that the current jurisdictional arrangement entails.

 

I also support Mike Rodenbaugh's suggestion to broaden the scope of the questions. I think we should welcome the input of any stakeholder that may have facts and genuine (well-founded) issues to present.

 

Finally, in order to eliminate the possibility of confusion, I would support dividing the document in two sessions: 1. Fact solicitation/ 2. Perceived risks

 

Regards,

 

Secretário Pedro Ivo Ferraz da Silva

Divisão da Sociedade da Informação (DI)

Ministério das Relações Exteriores - Brasil

T: + 55 61 2030-6609

 

Secretary Pedro Ivo Ferraz da Silva

Division of Information Society (DI)

Ministry of External Relations - Brazil

T: + 55 61 2030-6609

 

 

De: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] Em nome de parminder
Enviada em: domingo, 27 de novembro de 2016 04:34
Para: ws2-jurisdiction@icann.org
Assunto: Re: [Ws2-jurisdiction] first draft of fact solicitation questions

 

 

 

On Saturday 26 November 2016 08:23 PM, avri doria wrote:

Hi,
 
I am among those who would like to see a question included along the
lines Parminder suggests. It should, however, be made by specific
reference to existing laws that could be used to interfere with ICANN's
ability to provide service to customers in other countries.


I think that Avri's proposal would be a good way to go about it, as long as we do not the circumscribe the inquiry too much. I would prefer a general question, plus a specific component, like
 
What do you think are the problems, if any, with continued jurisdiction of the US state over ICANN, as a US non-profit? Please justify your response with appropriate examples, analysis, etc. Especially, please indicate if there are existing and past instances that highlight such problems. Also, in terms of future likelihood, please mention specific institutions/ laws etc of the US state that could be used to interfere with ICANN's ability to provide global governance services to all people of the world, including in non US countries.

(Pl note that I have replaced the last part on services to customers in other countries to global gov services to all people.)



While I strongly support keeping the incorporation in CA in the US
because the yet to tested accountability process depends on that,


I am happy to support a separate exercise seeking expert opinion on whether accountability process does or does not pertain to private law which can choose its own jurisdiction of adjudication (as most private contracts can), irrespective of whether ICANN is subject to US public laws or not, as having immunity from them, whether on basis of an international law incorporation of US state granted immunity under the mentioned immunity laws of the US. In this manner, to ascertain whether ICANN's new accountability mechanism can or cannot still be adjudicated upon by Californian law/ courts, on the basis of making the necessary provision in ICANN's bylaws.
 

 I also
support an effort to look for immunity from laws that affect ICANN
ability to serve clients internationally - be they governments,
companies or individuals.  This immunity should be restricted to ICANN
performance of its mission in relation to international entities and
_not_ relate to contract law, labor law or local ordinances on garbage
pickup.


Of course, that is exactly what is sought. And that is possible in my view to do with immunity under the US immunity provisions. 

I do not think that this immunity can be gained in the WS2 timeframe,
but I do believe that WS2 could initiate yet another CCWG effort to work
on that, if the consensus of the group were to do so.

The purpose of the WS2 is to make recommendations and for ICANN to begin action on that basis. That can be done in a few months, if agreed to.. It is not about necessarily completing the process within WS2 time frame. If WS2 does not give this rec, and passes it on to WS3, the same problem will arise; if we would not have begun working on it, immunity cannot be gained within any WS# time period as well, which then becomes an infinite process .....

Let us be very clear; if we are working on immunity from US under relevant current provisions of US law, we can only recommend, as the wish of the world community. It if of course for the US state to act on it or not. But I would find it extremely strange for us not to arrive at a rec which in our view if what preserves the global public interest best, and is quite possible/ practical to do, just because we begin second guessing whether US state will actually do it, and if so, in what time frame. That I do not think if the job of this group or of CCWG as a whole. 


But first we need more of the background information, the so-called
facts. We have to remember that with NTIA oversight, the application of
some laws may have been different than it might be going forward.  We
need to understand whether that is the case or not, and whether there
are laws that could now be applied to ICANN's activities that were not
applied before.


Yes I agree. This is a kind of investigation that is needed. Meanwhile, let me add, and I think this is what Avri is already alluding to, as now being not under a US gov contract/ oversight, ICANN in fact , in one way, may be more exposed to the full power of all laws and institutions of the US state than before. It is now just another private organisation.

parminder 

 
 
avri
 
 
 
On 26-Nov-16 05:08, parminder wrote:
 
 
 
On Saturday 26 November 2016 01:55 PM, Mueller, Milton L wrote:
 
Sorry, Parminder, I see this as a request for opinions, not facts.
The whole point of this exercise is to gain specific factual cases
that show actual issues, not to provide people with an excuse to
complain about what the “think are the problems.” I would reject
adding such a question to the list 
 
 
 Milton, you probably mean, you are against adding such a question :).
I dont see you have any authority to reject anything any more than I
have to reject your original formulation.
 
Was not the community accountability mechanism instituted just on the
basis of "what people think are the problems"? I saw no efforts to
gather facts with surveys like
 
"1.       Are you aware of any instance in which anyone's business,
privacy, or ability to use or purchase DNS-related services, has been
affected by absence of a community accountability mechanism ?
 
If any such known 'facts' exist I am unaware of them and will like to
know.
 
In case of the question of ICANN's jurisdiction of incorporation
analytical facts are rather more evident, as raised in the civil
society statement.
 
The process we employ can lead towards certain kind of outcomes rather
than others. And I see this particular process being aimed at
foreclosing the jurisdiction of incorporation question. This is fact
the "application of public laws question" because immunity from such
application can be obtained even without changing ICANN's place of
jurisdiction.
 
Meaning ICANN can stay incorporated as US non profit in California,
and it exempted from application form various public laws as per the
US immunity act that I cited. I also said that, as far as I can
understand, it is possible to keep the private disputes arising from
ICANN's organisational system, including those about enforcement of
community powers, to be subject to US/ Californian law, strictly only
for such dispute resolution as per ICANN bylaws. We need to hear from
this group why this is not possible or not preferred...
 
parminder
 
 
 
 
*From:*ws2-jurisdiction-bounces@icann.org
[mailto:ws2-jurisdiction-bounces@icann.org] *On Behalf Of *parminder
*Sent:* Wednesday, November 23, 2016 11:54 PM
*To:* ws2-jurisdiction@icann.org
*Subject:* Re: [Ws2-jurisdiction] first draft of fact solicitation
questions
 
 
 
I will like to add a general question to the below:
 
What do you think are the problems, if any, with continued
jurisdiction of the US state over ICANN, as a US non-profit? Please
justify your response with appropriate examples, analysis, etc.
Especially, if there are existing and past instances that highlight
such problems please indicate them.
 
parminder
 
 
 
On Wednesday 23 November 2016 09:50 PM, Mike Rodenbaugh wrote:
 
    These seem well-stated, except perhaps they should not be looking
    only for personal experience, but broaden the request to seek any
    experience the responder is aware of?  So I suggest something like:
 
     
 
    1.       Are you aware of any instance in which anyone's
    business, privacy, or ability to use or purchase DNS-related
    services, has been affected by ICANN's jurisdiction in any way?
 
    If the answer is Yes, please describe specific cases or
    incidents, including the date, the parties involved, and links to
    any relevant documents.
 
    2.       Are you aware of any instance in which ICANN's
    jurisdiction affected any dispute resolution process or
    litigation related to domain names?
 
    If the answer is Yes, please describe specific cases or
    incidents, including the date, the parties involved, and links to
    any relevant documents.
 
     
 
     
 
 
    Mike Rodenbaugh
 
    RODENBAUGH LAW
 
    tel/fax:  +1.415.738.8087
 
    http://rodenbaugh.com 
 
     
 
    On Wed, Nov 23, 2016 at 6:47 AM, Mueller, Milton L
    <milton@gatech.edu <mailto:milton@gatech.edu>> wrote:
 
        CW and I have agreed on the following draft:
 
         
 
         
 
        *Request for stakeholder input on jurisdiction issues*
 
         
 
        The Jurisdiction subgroup of the CCWG Accountability is
        asking for the community to provide factual input on the
        following questions:
 
         
 
        1.       Has your business, your privacy or your ability to
        use or purchase DNS-related services, been affected by
        ICANN's jurisdiction in any way?
 
        If the answer is Yes, please describe specific cases or
        incidents, including the date, the parties involved, and
        links to any relevant documents.
 
         
 
        2.       Has ICANN's jurisdiction affected any dispute
        resolution process or litigation related to domain names you
        have been involved in?
 
        If the answer is Yes, please describe specific cases or
        incidents, including the date, the parties involved, and
        links to any relevant documents.
 
         
 
         
 
         
 
        Dr. Milton L. Mueller
 
        Professor, School of Public Policy
 
        Georgia Institute of Technology
 
         
 
         
 
 
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