Hi Greg Per our discussion on the call today, I would suggest a slight amendment to this strawman proposal. My take is that, as Avri suggested, the Subgroup should continue its work on the basis of an assumption that the jurisdiction of incorporation will remain unchanged and that our report to the Plenary will state that as an assumption (rather than, as David has suggested (and I would support) as a conclusion or recommendation). This will enable us to work forward on real issues of accountability effects arising from incorporation and move past the endless recircling we are doing. The practical consequences of this choice would be to confine our discussion in two ways. When a potential issue that effects accountability is raised (e.g. OFAC or in rem) it would not be a response to say “well, we are stuck with that because we are in California” but it would also no longer be a suitable response to say “we can eliminate that problem by moving to XXX” Our work would, as I understand it, focus on the question of “can that problem be mitigated by the application of other aspects of California/US/contractual law” (that is law that assumes that incorporation is unchanged but, for example, admits of the possibility that ICANN might be able to contract around some problems). I would support this approach, as did a majority of those on the call (maybe even everyone). Thus I would reformulate your submission to the Plenary as a report of what we have determined as the way forward – namely to assume that the place of incorporation will not change, but to make explicit the premise that our assumption is without prejudice to the issue being raised in some other broader forum. Cheers Paul Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com> O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 www.redbranchconsulting.com <http://www.redbranchconsulting.com/> My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get <https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684> &search=0x9A830097CA066684 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 Please see attached.
Thanks Paul R. Greg, I agree with this – mostly. I do think it is worth noting in our final report that the issue of moving ICANN’s formation jurisdiction outside of California was discussed at great length by this group and there was no consensus to do so. Otherwise, our report would look like we just assumed that California formation would remain but did not discuss it. That would not be accurate. Best, Paul M. Paul D. McGrady Jr. Partner Chair, Trademark, Domain Names and Brand Enforcement Practice Winston & Strawn LLP 35 W. Wacker Drive Chicago, IL 60601-9703 D: +1 (312) 558-5963 F: +1 (312) 558-5700 Bio<http://www.winston.com/en/who-we-are/attorneys/mcgrady-paul-d.html> | VCard<http://www.winston.com/vcards/996.vcf> | Email<mailto:pmcgrady@winston.com> | winston.com<http://www.winston.com> [Winston & Strawn LLP] From: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Paul Rosenzweig Sent: Thursday, June 08, 2017 2:13 PM To: 'Greg Shatan' <gregshatanipc@gmail.com>; 'ws2-jurisdiction' <ws2-jurisdiction@icann.org> Cc: acct-staff@icann.org Subject: Re: [Ws2-jurisdiction] Question Presented Hi Greg Per our discussion on the call today, I would suggest a slight amendment to this strawman proposal. My take is that, as Avri suggested, the Subgroup should continue its work on the basis of an assumption that the jurisdiction of incorporation will remain unchanged and that our report to the Plenary will state that as an assumption (rather than, as David has suggested (and I would support) as a conclusion or recommendation). This will enable us to work forward on real issues of accountability effects arising from incorporation and move past the endless recircling we are doing. The practical consequences of this choice would be to confine our discussion in two ways. When a potential issue that effects accountability is raised (e.g. OFAC or in rem) it would not be a response to say “well, we are stuck with that because we are in California” but it would also no longer be a suitable response to say “we can eliminate that problem by moving to XXX” Our work would, as I understand it, focus on the question of “can that problem be mitigated by the application of other aspects of California/US/contractual law” (that is law that assumes that incorporation is unchanged but, for example, admits of the possibility that ICANN might be able to contract around some problems). I would support this approach, as did a majority of those on the call (maybe even everyone). Thus I would reformulate your submission to the Plenary as a report of what we have determined as the way forward – namely to assume that the place of incorporation will not change, but to make explicit the premise that our assumption is without prejudice to the issue being raised in some other broader forum. Cheers Paul Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com> O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 www.redbranchconsulting.com<http://www.redbranchconsulting.com/> My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684 From: ws2-jurisdiction-bounces@icann.org<mailto: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<mailto:ws2-jurisdiction@icann.org>> Cc: acct-staff@icann.org<mailto:acct-staff@icann.org> Subject: [Ws2-jurisdiction] Question Presented Please see attached. ________________________________ The contents of this message may be privileged and confidential. If this message has been received in error, please delete it without reading it. Your receipt of this message is not intended to waive any applicable privilege. Please do not disseminate this message without the permission of the author. Any tax advice contained in this email was not intended to be used, and cannot be used, by you (or any other taxpayer) to avoid penalties under applicable tax laws and regulations.
Agreed On 9 Jun. 2017 05:52, "icannlists" <icannlists@winston.com> wrote:
Thanks Paul R.
Greg, I agree with this – mostly. I do think it is worth noting in our final report that the issue of moving ICANN’s formation jurisdiction outside of California was discussed at great length by this group and there was no consensus to do so. Otherwise, our report would look like we just assumed that California formation would remain but did not discuss it. That would not be accurate.
Best,
Paul M.
*Paul D. McGrady Jr.*
*Partner *
*Chair, Trademark, Domain Names and Brand Enforcement Practice *
Winston & Strawn LLP 35 W. Wacker Drive Chicago, IL 60601-9703
D: +1 (312) 558-5963 <+1%20312-558-5963>
F: +1 (312) 558-5700 <+1%20312-558-5700>
Bio <http://www.winston.com/en/who-we-are/attorneys/mcgrady-paul-d.html> | VCard <http://www.winston.com/vcards/996.vcf> | Email <pmcgrady@winston.com> | winston.com <http://www.winston.com>
[image: Winston & Strawn LLP]
*From:* ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction- bounces@icann.org] *On Behalf Of *Paul Rosenzweig *Sent:* Thursday, June 08, 2017 2:13 PM *To:* 'Greg Shatan' <gregshatanipc@gmail.com>; 'ws2-jurisdiction' < ws2-jurisdiction@icann.org> *Cc:* acct-staff@icann.org *Subject:* Re: [Ws2-jurisdiction] Question Presented
Hi Greg
Per our discussion on the call today, I would suggest a slight amendment to this strawman proposal. My take is that, as Avri suggested, the Subgroup should continue its work on the basis of an assumption that the jurisdiction of incorporation will remain unchanged and that our report to the Plenary will state that as an assumption (rather than, as David has suggested (and I would support) as a conclusion or recommendation). This will enable us to work forward on real issues of accountability effects arising from incorporation and move past the endless recircling we are doing.
The practical consequences of this choice would be to confine our discussion in two ways. When a potential issue that effects accountability is raised (e.g. OFAC or in rem) it would not be a response to say “well, we are stuck with that because we are in California” but it would also no longer be a suitable response to say “we can eliminate that problem by moving to XXX” Our work would, as I understand it, focus on the question of “can that problem be mitigated by the application of other aspects of California/US/contractual law” (that is law that assumes that incorporation is unchanged but, for example, admits of the possibility that ICANN might be able to contract around some problems). I would support this approach, as did a majority of those on the call (maybe even everyone).
Thus I would reformulate your submission to the Plenary as a report of what we have determined as the way forward – namely to assume that the place of incorporation will not change, but to make explicit the premise that our assumption is without prejudice to the issue being raised in some other broader forum.
Cheers
Paul
Paul Rosenzweig
paul.rosenzweig@redbranchconsulting.com
O: +1 (202) 547-0660 <+1%20202-547-0660>
M: +1 (202) 329-9650 <+1%20202-329-9650>
VOIP: +1 (202) 738-1739 <+1%20202-738-1739>
www.redbranchconsulting.com
My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search= 0x9A830097CA066684
*From:* ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction- bounces@icann.org <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
Please see attached.
------------------------------ The contents of this message may be privileged and confidential. If this message has been received in error, please delete it without reading it. Your receipt of this message is not intended to waive any applicable privilege. Please do not disseminate this message without the permission of the author. Any tax advice contained in this email was not intended to be used, and cannot be used, by you (or any other taxpayer) to avoid penalties under applicable tax laws and regulations.
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Also +1 On Jun 8, 2017 4:33 PM, "Cheryl Langdon-Orr" <langdonorr@gmail.com> wrote:
Agreed
On 9 Jun. 2017 05:52, "icannlists" <icannlists@winston.com> wrote:
Thanks Paul R.
Greg, I agree with this – mostly. I do think it is worth noting in our final report that the issue of moving ICANN’s formation jurisdiction outside of California was discussed at great length by this group and there was no consensus to do so. Otherwise, our report would look like we just assumed that California formation would remain but did not discuss it. That would not be accurate.
Best,
Paul M.
*Paul D. McGrady Jr.*
*Partner *
*Chair, Trademark, Domain Names and Brand Enforcement Practice *
Winston & Strawn LLP 35 W. Wacker Drive Chicago, IL 60601-9703
D: +1 (312) 558-5963 <+1%20312-558-5963>
F: +1 (312) 558-5700 <+1%20312-558-5700>
Bio <http://www.winston.com/en/who-we-are/attorneys/mcgrady-paul-d.html> | VCard <http://www.winston.com/vcards/996.vcf> | Email <pmcgrady@winston.com> | winston.com <http://www.winston.com>
[image: Winston & Strawn LLP]
*From:* ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounc es@icann.org] *On Behalf Of *Paul Rosenzweig *Sent:* Thursday, June 08, 2017 2:13 PM *To:* 'Greg Shatan' <gregshatanipc@gmail.com>; 'ws2-jurisdiction' < ws2-jurisdiction@icann.org> *Cc:* acct-staff@icann.org *Subject:* Re: [Ws2-jurisdiction] Question Presented
Hi Greg
Per our discussion on the call today, I would suggest a slight amendment to this strawman proposal. My take is that, as Avri suggested, the Subgroup should continue its work on the basis of an assumption that the jurisdiction of incorporation will remain unchanged and that our report to the Plenary will state that as an assumption (rather than, as David has suggested (and I would support) as a conclusion or recommendation). This will enable us to work forward on real issues of accountability effects arising from incorporation and move past the endless recircling we are doing.
The practical consequences of this choice would be to confine our discussion in two ways. When a potential issue that effects accountability is raised (e.g. OFAC or in rem) it would not be a response to say “well, we are stuck with that because we are in California” but it would also no longer be a suitable response to say “we can eliminate that problem by moving to XXX” Our work would, as I understand it, focus on the question of “can that problem be mitigated by the application of other aspects of California/US/contractual law” (that is law that assumes that incorporation is unchanged but, for example, admits of the possibility that ICANN might be able to contract around some problems). I would support this approach, as did a majority of those on the call (maybe even everyone).
Thus I would reformulate your submission to the Plenary as a report of what we have determined as the way forward – namely to assume that the place of incorporation will not change, but to make explicit the premise that our assumption is without prejudice to the issue being raised in some other broader forum.
Cheers
Paul
Paul Rosenzweig
paul.rosenzweig@redbranchconsulting.com
O: +1 (202) 547-0660 <+1%20202-547-0660>
M: +1 (202) 329-9650 <+1%20202-329-9650>
VOIP: +1 (202) 738-1739 <+1%20202-738-1739>
www.redbranchconsulting.com
My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830 097CA066684
*From:* ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounc es@icann.org <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
Please see attached.
------------------------------ The contents of this message may be privileged and confidential. If this message has been received in error, please delete it without reading it. Your receipt of this message is not intended to waive any applicable privilege. Please do not disseminate this message without the permission of the author. Any tax advice contained in this email was not intended to be used, and cannot be used, by you (or any other taxpayer) to avoid penalties under applicable tax laws and regulations.
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Same +1 On 08/06/2017 23:29, Bartlett Morgan wrote:
Also +1
On Jun 8, 2017 4:33 PM, "Cheryl Langdon-Orr" <langdonorr@gmail.com <mailto:langdonorr@gmail.com>> wrote:
Agreed
On 9 Jun. 2017 05:52, "icannlists" <icannlists@winston.com <mailto:icannlists@winston.com>> wrote:
Thanks Paul R.
Greg, I agree with this – mostly. I do think it is worth noting in our final report that the issue of moving ICANN’s formation jurisdiction outside of California was discussed at great length by this group and there was no consensus to do so. Otherwise, our report would look like we just assumed that California formation would remain but did not discuss it. That would not be accurate.
Best,
Paul M.
*Paul D. McGrady Jr.*
*Partner *
*Chair, Trademark, Domain Names and Brand Enforcement Practice *
Winston & Strawn LLP 35 W. Wacker Drive Chicago, IL 60601-9703
D: +1 (312) 558-5963 <tel:+1%20312-558-5963>
F: +1 (312) 558-5700 <tel:+1%20312-558-5700>
Bio <http://www.winston.com/en/who-we-are/attorneys/mcgrady-paul-d.html> | VCard <http://www.winston.com/vcards/996.vcf> | Email <mailto:pmcgrady@winston.com> | winston.com <http://www.winston.com>
Winston & Strawn LLP
*From:* ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org>] *On Behalf Of *Paul Rosenzweig *Sent:* Thursday, June 08, 2017 2:13 PM *To:* 'Greg Shatan' <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>>; 'ws2-jurisdiction' <ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org>> *Cc:* acct-staff@icann.org <mailto:acct-staff@icann.org> *Subject:* Re: [Ws2-jurisdiction] Question Presented
Hi Greg
Per our discussion on the call today, I would suggest a slight amendment to this strawman proposal. My take is that, as Avri suggested, the Subgroup should continue its work on the basis of an assumption that the jurisdiction of incorporation will remain unchanged and that our report to the Plenary will state that as an assumption (rather than, as David has suggested (and I would support) as a conclusion or recommendation). This will enable us to work forward on real issues of accountability effects arising from incorporation and move past the endless recircling we are doing.
The practical consequences of this choice would be to confine our discussion in two ways. When a potential issue that effects accountability is raised (e.g. OFAC or in rem) it would not be a response to say “well, we are stuck with that because we are in California” but it would also no longer be a suitable response to say “we can eliminate that problem by moving to XXX” Our work would, as I understand it, focus on the question of “can that problem be mitigated by the application of other aspects of California/US/contractual law” (that is law that assumes that incorporation is unchanged but, for example, admits of the possibility that ICANN might be able to contract around some problems). I would support this approach, as did a majority of those on the call (maybe even everyone).
Thus I would reformulate your submission to the Plenary as a report of what we have determined as the way forward – namely to assume that the place of incorporation will not change, but to make explicit the premise that our assumption is without prejudice to the issue being raised in some other broader forum.
Cheers
Paul
Paul Rosenzweig
paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com>
O: +1 (202) 547-0660 <tel:+1%20202-547-0660>
M: +1 (202) 329-9650 <tel:+1%20202-329-9650>
VOIP: +1 (202) 738-1739 <tel:+1%20202-738-1739>
www.redbranchconsulting.com <http://www.redbranchconsulting.com/>
My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684 <https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684>
*From:* ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [mailto: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 <mailto:ws2-jurisdiction@icann.org>> *Cc:* acct-staff@icann.org <mailto:acct-staff@icann.org> *Subject:* [Ws2-jurisdiction] Question Presented
Please see attached.
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Hmmm, I like to suggest care here. Yes the point was raised, whether it was formerly recognised as an issue and discussed as part of the items for this group is debatable. Infact that we are asking a question(ref: Greg's attached doc) in that regard as it concerns scope affirms that we can't claim it was formerly discussed and consensus not achieved. Ofcourse it can be noted that there wasn't agreement to formerly discuss it which seem to be the case. Regards PS: This does not imply a support to change of jurisdiction as I don't see reason for it. On 8 Jun 2017 8:52 PM, "icannlists" <icannlists@winston.com> wrote:
Thanks Paul R.
Greg, I agree with this – mostly. I do think it is worth noting in our final report that the issue of moving ICANN’s formation jurisdiction outside of California was discussed at great length by this group and there was no consensus to do so. Otherwise, our report would look like we just assumed that California formation would remain but did not discuss it. That would not be accurate.
Best,
Paul M.
*Paul D. McGrady Jr.*
*Partner *
*Chair, Trademark, Domain Names and Brand Enforcement Practice *
Winston & Strawn LLP 35 W. Wacker Drive Chicago, IL 60601-9703
D: +1 (312) 558-5963 <+1%20312-558-5963>
F: +1 (312) 558-5700 <+1%20312-558-5700>
Bio <http://www.winston.com/en/who-we-are/attorneys/mcgrady-paul-d.html> | VCard <http://www.winston.com/vcards/996.vcf> | Email <pmcgrady@winston.com> | winston.com <http://www.winston.com>
[image: Winston & Strawn LLP]
*From:* ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction- bounces@icann.org] *On Behalf Of *Paul Rosenzweig *Sent:* Thursday, June 08, 2017 2:13 PM *To:* 'Greg Shatan' <gregshatanipc@gmail.com>; 'ws2-jurisdiction' < ws2-jurisdiction@icann.org> *Cc:* acct-staff@icann.org *Subject:* Re: [Ws2-jurisdiction] Question Presented
Hi Greg
Per our discussion on the call today, I would suggest a slight amendment to this strawman proposal. My take is that, as Avri suggested, the Subgroup should continue its work on the basis of an assumption that the jurisdiction of incorporation will remain unchanged and that our report to the Plenary will state that as an assumption (rather than, as David has suggested (and I would support) as a conclusion or recommendation). This will enable us to work forward on real issues of accountability effects arising from incorporation and move past the endless recircling we are doing.
The practical consequences of this choice would be to confine our discussion in two ways. When a potential issue that effects accountability is raised (e.g. OFAC or in rem) it would not be a response to say “well, we are stuck with that because we are in California” but it would also no longer be a suitable response to say “we can eliminate that problem by moving to XXX” Our work would, as I understand it, focus on the question of “can that problem be mitigated by the application of other aspects of California/US/contractual law” (that is law that assumes that incorporation is unchanged but, for example, admits of the possibility that ICANN might be able to contract around some problems). I would support this approach, as did a majority of those on the call (maybe even everyone).
Thus I would reformulate your submission to the Plenary as a report of what we have determined as the way forward – namely to assume that the place of incorporation will not change, but to make explicit the premise that our assumption is without prejudice to the issue being raised in some other broader forum.
Cheers
Paul
Paul Rosenzweig
paul.rosenzweig@redbranchconsulting.com
O: +1 (202) 547-0660 <+1%20202-547-0660>
M: +1 (202) 329-9650 <+1%20202-329-9650>
VOIP: +1 (202) 738-1739 <+1%20202-738-1739>
www.redbranchconsulting.com
My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search= 0x9A830097CA066684
*From:* ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction- bounces@icann.org <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
Please see attached.
------------------------------ The contents of this message may be privileged and confidential. If this message has been received in error, please delete it without reading it. Your receipt of this message is not intended to waive any applicable privilege. Please do not disseminate this message without the permission of the author. Any tax advice contained in this email was not intended to be used, and cannot be used, by you (or any other taxpayer) to avoid penalties under applicable tax laws and regulations.
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I agree completely. I certainly would not ever suggest that we fail to report faithfully what has transpired in the subgroup. A statement that the issue was considered at length but no consensus was reached is factually accurate. Paul Paul Rosenzweig <mailto:paul.rosenzweig@redbranchconsulting.com> paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 <http://www.redbranchconsulting.com/> www.redbranchconsulting.com My PGP Key: <https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684> https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684 From: icannlists [mailto:icannlists@winston.com] Sent: Thursday, June 8, 2017 3:52 PM To: Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com>; 'Greg Shatan' <gregshatanipc@gmail.com>; 'ws2-jurisdiction' <ws2-jurisdiction@icann.org> Cc: acct-staff@icann.org Subject: RE: [Ws2-jurisdiction] Question Presented Thanks Paul R. Greg, I agree with this – mostly. I do think it is worth noting in our final report that the issue of moving ICANN’s formation jurisdiction outside of California was discussed at great length by this group and there was no consensus to do so. Otherwise, our report would look like we just assumed that California formation would remain but did not discuss it. That would not be accurate. Best, Paul M. Paul D. McGrady Jr. Partner Chair, Trademark, Domain Names and Brand Enforcement Practice Winston & Strawn LLP 35 W. Wacker Drive Chicago, IL 60601-9703 D: +1 (312) 558-5963 F: +1 (312) 558-5700 <http://www.winston.com/en/who-we-are/attorneys/mcgrady-paul-d.html> Bio | <http://www.winston.com/vcards/996.vcf> VCard | <mailto:pmcgrady@winston.com> Email | <http://www.winston.com> winston.com From: ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Paul Rosenzweig Sent: Thursday, June 08, 2017 2:13 PM To: 'Greg Shatan' <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com> >; 'ws2-jurisdiction' <ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> > Cc: acct-staff@icann.org <mailto:acct-staff@icann.org> Subject: Re: [Ws2-jurisdiction] Question Presented Hi Greg Per our discussion on the call today, I would suggest a slight amendment to this strawman proposal. My take is that, as Avri suggested, the Subgroup should continue its work on the basis of an assumption that the jurisdiction of incorporation will remain unchanged and that our report to the Plenary will state that as an assumption (rather than, as David has suggested (and I would support) as a conclusion or recommendation). This will enable us to work forward on real issues of accountability effects arising from incorporation and move past the endless recircling we are doing. The practical consequences of this choice would be to confine our discussion in two ways. When a potential issue that effects accountability is raised (e.g. OFAC or in rem) it would not be a response to say “well, we are stuck with that because we are in California” but it would also no longer be a suitable response to say “we can eliminate that problem by moving to XXX” Our work would, as I understand it, focus on the question of “can that problem be mitigated by the application of other aspects of California/US/contractual law” (that is law that assumes that incorporation is unchanged but, for example, admits of the possibility that ICANN might be able to contract around some problems). I would support this approach, as did a majority of those on the call (maybe even everyone). Thus I would reformulate your submission to the Plenary as a report of what we have determined as the way forward – namely to assume that the place of incorporation will not change, but to make explicit the premise that our assumption is without prejudice to the issue being raised in some other broader forum. Cheers Paul Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com> O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 www.redbranchconsulting.com <http://www.redbranchconsulting.com/> My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get <https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684> &search=0x9A830097CA066684 From: ws2-jurisdiction-bounces@icann.org <mailto: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 <mailto:ws2-jurisdiction@icann.org> > Cc: acct-staff@icann.org <mailto:acct-staff@icann.org> Subject: [Ws2-jurisdiction] Question Presented Please see attached. _____ The contents of this message may be privileged and confidential. If this message has been received in error, please delete it without reading it. Your receipt of this message is not intended to waive any applicable privilege. Please do not disseminate this message without the permission of the author. Any tax advice contained in this email was not intended to be used, and cannot be used, by you (or any other taxpayer) to avoid penalties under applicable tax laws and regulations.
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: 1. The issue IS within the intended scope of the subgroup, and 2. 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 Please see attached.
+1 Best regards, John Laprise, Ph.D. Principal Consultant <http://www.linkedin.com/in/jplaprise/> http://www.linkedin.com/in/jplaprise/ 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: 1. The issue IS within the intended scope of the subgroup, and 2. 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> [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 <mailto:ws2-jurisdiction@icann.org> > Cc: acct-staff@icann.org <mailto:acct-staff@icann.org> Subject: [Ws2-jurisdiction] Question Presented Please see attached.
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:
+1
Best regards,
John Laprise, Ph.D.
Principal Consultant
http://www.linkedin.com/in/jplaprise/
*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:
1. The issue IS within the intended scope of the subgroup, and
1. 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 <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
Please see attached.
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.com] 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<mailto:jlaprise@gmail.com>> wrote: +1 Best regards, John Laprise, Ph.D. Principal Consultant http://www.linkedin.com/in/jplaprise/ From: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org> [mailto: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<mailto:gregshatanipc@gmail.com>>; ws2-jurisdiction <ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org>> Cc: acct-staff@icann.org<mailto: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: 1. The issue IS within the intended scope of the subgroup, and 1. 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> [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<mailto:ws2-jurisdiction@icann.org>> Cc: acct-staff@icann.org<mailto:acct-staff@icann.org> Subject: [Ws2-jurisdiction] Question Presented Please see attached.
Milton, Once again I more-or-less agree with you in the initial part of the email, but with exceptions. At some point, the discussion turned away from a "scope" framing, but not really until the second call. So the emails prior to the second call were largely hung up on scope, and those afterwards were hung up on procedure. I also agree we have done a lot of good work, but much of it is still in midstream. We will need to review the prior draft documents and see what we can bring into a deliverable. I think the OFAC discussion is also still mid-stream and needs some focus and rigor to bring it forward, and see if we get agreement that it is not merely a "proposed issue" but an "issue." (Not something to pick up in this email thread, but definitely to be picked up.) On the other points, as rapporteur I express no personal opinion, but I do believe that the bulk of the group would be in agreement with your assessment, at least within the remit of this CCWG-Accountability. Greg On Mon, Jun 19, 2017 at 3:16 PM, Mueller, Milton L <milton@gatech.edu> 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.com] *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:
+1
Best regards,
John Laprise, Ph.D.
Principal Consultant
http://www.linkedin.com/in/jplaprise/
*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:
1. The issue IS within the intended scope of the subgroup, and
1. 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 <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
Please see attached.
I have been lurking on this list all along, reading every email, and though I am not sure I have ever said this in the past 15 years knowing Milton, I agree with him completely. The scope and substantive discussions have been intermingled, should be separated, and we should all see the clear consensus at least on this list that there is no better alternative to the one devised first by the community in the late '90s, and again by the community in the past few years. There really is no real debate on this list, despite the persistence of a few people on this list. Of course, this group may not be the ultimately definitive decision-makers, but to the extent we have input into the process, the result of this group seems clear to me. And so we need to report it, and be done with it. Other in-scope and subsidiary issues were the real purpose of this group, not the macro issue. So let's get on with the other things we should be talking about. Mike Rodenbaugh RODENBAUGH LAW tel/fax: +1.415.738.8087 http://rodenbaugh.com On Mon, Jun 19, 2017 at 12:16 PM, Mueller, Milton L <milton@gatech.edu> 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.com] *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:
+1
Best regards,
John Laprise, Ph.D.
Principal Consultant
http://www.linkedin.com/in/jplaprise/
*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:
1. The issue IS within the intended scope of the subgroup, and
1. 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 <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
Please see attached.
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
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.com] *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 <mailto:jlaprise@gmail.com>> wrote:
+1
Best regards,
John Laprise, Ph.D.
Principal Consultant
http://www.linkedin.com/in/jplaprise/
*From:*ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org>[mailto: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 <mailto:gregshatanipc@gmail.com>>; ws2-jurisdiction <ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org>> *Cc:* acct-staff@icann.org <mailto: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:
1. The issue IS within the intended scope of the subgroup, and
1. 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>[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 <mailto:ws2-jurisdiction@icann.org>> *Cc:* acct-staff@icann.org <mailto:acct-staff@icann.org> *Subject:* [Ws2-jurisdiction] Question Presented
Please see attached.
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
I have made clear that at this stage it is the process of making this wrongful intervention and not its substance that is to be the focus. But since there were some proposals to accept the "we wont talk about changes in ICANN incorporation" part of the decision and move on, let me make some comments on this substantive part. A lot of people in this group turn up their noses at any discussion on the problems with ICANN being a US non profit while it does an important global governance role. Many try to make it look like as if they have never known any serious actors interested in this discussion, and allege that it all coming from fringe radical elements without anything better to do. Some history may be worth revisting in this regard. At the WSIS, everyone knew ICANN's US incorporation as one of the biggest issues around. That was 12 -14 years ago, and the issues has only become more salient since. So, please, whatever be your views on the issue, please do not deny that this one has been the single biggest political issue around ICANN ever since it was born (those attempts to take the process to Geneva and all!). Lets fast forward. When the Snowden moment happened, even the so very politically conservative "technical community", which included the ICANN, itself called for "accelerating the globalization of and functions, towards an environment in which all stakeholders, including all governments, participate on an equal footing." (Montevideo statement <https://www.icann.org/news/announcement-2013-10-07-en>) Have we forgotten that, or accept that it was a dishonest statement, in a moment of existential fear! Is it being claimed that with globalisation of IANA and ICANN, withdrawal of NTIA's IANA role alone was meant, and nothing else. I want to hear someone say that, however untenable it is. And is it being claimed that "all governments" (that emphasis is clear in the above statement) today participate in the DNS system on an equal footing? It is being denied that the US jurisdiction over ICANN puts the US state's power over ICANN at an entirely different level than of any other government, as was made evident during sub group's discussions and many responses to the questionnaire? The Montevideo statement reaffirmed the call of Tunis Agenda that all government that "all governments should have an equal role and responsibility for international Internet governance." The ICANN co sponsored netmundial conference and statement, to which many here often adhere closely, declared that "It is expected that the process of globalization of ICANN speeds up leading to a truly international and global organization serving the public interest." Is it being claimed that all these statements and promises went not at all beyond withdrawal of NTIA's IANA role? Lets be a little more honest to our own past statements. US jurisdiction over ICANN was and will remain a central issue about ICANN's legitimacy and accountability. It is evident from its long history and solid entrenchment as described above that this is not a kind of issue about which the CCWG chair can simply land announced one day and unilaterally declare a gag. No, this issue just does not being to that kind of a level. Whatever the final recommendations, this issue must be discussed thoroughly, and various strong views on it recorded in the final report. This was always a central mandate of this group, and the CCWG chair cannot unilaterally rewrite the mandate. If indeed the group seeks to come to a conclusion that, important while the incorporation issue is, and there being multiple global statements on it, we find the ICANN community simply not mature to consider this big political issue internally by itself (as in CCWG 1 it was found that the community is not mature enough to have a membership based ICANN), then let it be recorded in that many words. Including that we want other, "higher" forums, to discuss and decide this for us I wont accept this key issue to be dismissed through a simple procedural manoeuvre. It just does not belong to that level. In sum, I would *not* agree to go with those who are now ready to take the ICANN incorporation issue off the table, if tailored immunity discussions are allowed. (I must mention that I consider the latter option a very important one, and have been arguing for it for many months.) Yes, I do not expect this group to make a consensus recommendation on changing ICANN's incorporation/ jurisdiction, but the issue needs discussion and its various elements must be recorded and reported, in the final report. It is too convenient for the chair to peremptorily conclude that there is unlikely to be a consensus agreement to change ICANN's incorporation. But then it is also a fact that there is no consensus that the current status quo is acceptable. This especially comes storngly in the questionaire responses. Why dont we record that particular absence of consensus about the appropriate of current jurisdictional status quo, rather then the favoured ones. parminder On Sunday 25 June 2017 10:32 AM, parminder wrote:
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.com] *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 <mailto:jlaprise@gmail.com>> wrote:
+1
Best regards,
John Laprise, Ph.D.
Principal Consultant
http://www.linkedin.com/in/jplaprise/
*From:*ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org>[mailto: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 <mailto:gregshatanipc@gmail.com>>; ws2-jurisdiction <ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org>> *Cc:* acct-staff@icann.org <mailto: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:
1. The issue IS within the intended scope of the subgroup, and
1. 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>[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 <mailto:ws2-jurisdiction@icann.org>> *Cc:* acct-staff@icann.org <mailto:acct-staff@icann.org> *Subject:* [Ws2-jurisdiction] Question Presented
Please see attached.
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
I'd just like to clear up just a few misconceptions in the email below in advance of our discussion this afternoon, especially since many in the Plenary will not have followed the Jurisdiction subgroup email list where much of this took place. *"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." * 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 On Sun, Jun 25, 2017 at 7:02 AM, parminder <parminder@itforchange.net> wrote:
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.com <gregshatanipc@gmail.com>] *Sent:* Monday, June 19, 2017 12:44 PM *To:* John Laprise <jlaprise@gmail.com> <jlaprise@gmail.com>; Mueller, Milton L <milton@gatech.edu> <milton@gatech.edu>; ws2-jurisdiction <ws2-jurisdiction@icann.org> <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:
+1
Best regards,
John Laprise, Ph.D.
Principal Consultant
http://www.linkedin.com/in/jplaprise/
*From:* ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounc es@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:
1. The issue IS within the intended scope of the subgroup, and
1. 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-bounc es@icann.org <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
Please see attached.
_______________________________________________ Ws2-jurisdiction mailing listWs2-jurisdiction@icann.orghttps://mm.icann.org/mailman/listinfo/ws2-jurisdiction
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
I think you are wrong. It's totally clear to me that moving ICANN's place of incorporation to England, and reincorporating as a company limited by guarantee, having Members (who can be legal as well as natural persons) would be a far superior model. Let me think of an example . .. ah yes, Nominet UK! However, is the actually perceived gain worth the effort? Well, I rather doubt it. And there'd be opposition. So why not make the best of what we have?? And if the gedankenexperiment of moving to London doesn't work, then it's not going to work for Istanbul, Cairo, Singapore or even Brussels or Zurich. (Much as I'd like the excuse to visit Singapore regularly.) On 19/06/17 15:40, Mueller, Milton L wrote:
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:
1. The issue IS within the intended scope of the subgroup, and
2. 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
Please see attached.
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
Nigel, I have no idea what the perceived gain of incorporating in the UK would be, and of course, the community's proposal to have ICANN as a membership organization (CWG Second Draft) did not carry the day, so we ended up with what we have. But let's not analyze it, unless it's over a beer. In any case, we should be discussing issues and recommendations, rather than alternate jurisdictions.... Greg On Mon, Jun 19, 2017 at 12:20 PM Nigel Roberts <nigel@channelisles.net> wrote:
I think you are wrong.
It's totally clear to me that moving ICANN's place of incorporation to England, and reincorporating as a company limited by guarantee, having Members (who can be legal as well as natural persons) would be a far superior model. Let me think of an example . .. ah yes, Nominet UK!
However, is the actually perceived gain worth the effort? Well, I rather doubt it. And there'd be opposition.
So why not make the best of what we have??
And if the gedankenexperiment of moving to London doesn't work, then it's not going to work for Istanbul, Cairo, Singapore or even Brussels or Zurich. (Much as I'd like the excuse to visit Singapore regularly.)
On 19/06/17 15:40, Mueller, Milton L wrote:
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:
1. The issue IS within the intended scope of the subgroup, and
2. 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
Please see attached.
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
If we are all dreaming of pleasant venues, might not France with an office located in the Tahiti Department be the best choice? P Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 www.redbranchconsulting.com My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684 -----Original Message----- From: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Nigel Roberts Sent: Monday, June 19, 2017 12:19 PM To: ws2-jurisdiction@icann.org Subject: Re: [Ws2-jurisdiction] Question Presented I think you are wrong. It's totally clear to me that moving ICANN's place of incorporation to England, and reincorporating as a company limited by guarantee, having Members (who can be legal as well as natural persons) would be a far superior model. Let me think of an example . .. ah yes, Nominet UK! However, is the actually perceived gain worth the effort? Well, I rather doubt it. And there'd be opposition. So why not make the best of what we have?? And if the gedankenexperiment of moving to London doesn't work, then it's not going to work for Istanbul, Cairo, Singapore or even Brussels or Zurich. (Much as I'd like the excuse to visit Singapore regularly.) On 19/06/17 15:40, Mueller, Milton L wrote:
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:
1. The issue IS within the intended scope of the subgroup, and
2. 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
Please see attached.
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
participants (12)
-
Bartlett Morgan -
Cheryl Langdon-Orr -
Greg Shatan -
icannlists -
John Laprise -
Matthew Shears -
Mike Rodenbaugh -
Mueller, Milton L -
Nigel Roberts -
parminder -
Paul Rosenzweig -
Seun Ojedeji