Re: [Ws2-jurisdiction] Mandate and Scope of Jurisdiction Subgroup will be on Tuesday's Agenda
Dear Greg, I'm not sure there is a need to come back to discussions we already had on the Subgroup's mandate (and in fact I saw no one else proposing this, at least not before you included it yourself as an item in our agenda). An illustration that there is no such a need is that we will be discussing substantive issues in our upcoming calls, which the Subgroup agreed to as it had no difficulty in seeing them as within our mandate: the impact of OFAC sanctions in ICANN's operations, for example, and the ability of US courts to interfere with the allocation of ccTLDs (upon a suggestion by Tatiana Tropina, which others and I seconded, and which encountered no objection from within the Subgroup as I understand). Jorge's proposed approach is very sensible, I believe is in line with what the Subgroup said it'd be doing in our upcoming calls, and I fully support it. Perhaps only where "there would be a question of in/out scope" "vis-à-vis a given case", as identified and supported by a reasonable portion of the Subgroup, should we come back to the mandate discussion for specific guidance. But again, the mandate is set out in the foundational documents and we all have had an opportunity to read them. Best, Thiago -----Mensagem original----- De: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] Em nome de ws2-jurisdiction-request@icann.org Enviada em: segunda-feira, 5 de junho de 2017 09:00 Para: ws2-jurisdiction@icann.org Assunto: Ws2-jurisdiction Digest, Vol 12, Issue 3 Send Ws2-jurisdiction mailing list submissions to ws2-jurisdiction@icann.org To subscribe or unsubscribe via the World Wide Web, visit https://mm.icann.org/mailman/listinfo/ws2-jurisdiction or, via email, send a message with subject or body 'help' to ws2-jurisdiction-request@icann.org You can reach the person managing the list at ws2-jurisdiction-owner@icann.org When replying, please edit your Subject line so it is more specific than "Re: Contents of Ws2-jurisdiction digest..." Today's Topics: 1. Mandate and Scope of Jurisdiction Subgroup will be on Tuesday's Agenda (Greg Shatan) 2. Re: Mandate and Scope of Jurisdiction Subgroup will be on Tuesday's Agenda (Jorge.Cancio@bakom.admin.ch) 3. Re: Mandate and Scope of Jurisdiction Subgroup will be on Tuesday's Agenda (Kavouss Arasteh) ---------------------------------------------------------------------- Message: 1 Date: Sun, 04 Jun 2017 21:39:25 +0000 From: Greg Shatan <gregshatanipc@gmail.com> To: ws2-jurisdiction <ws2-jurisdiction@icann.org> Subject: [Ws2-jurisdiction] Mandate and Scope of Jurisdiction Subgroup will be on Tuesday's Agenda Message-ID: <CA+aOHUSKwbzuxXL-F1riN4j8SVjZhVWUsDmEYBLrYaAVKHtqKA@mail.gmail.com> Content-Type: text/plain; charset="utf-8" All, I wanted to provide advance notice that we will pick up the discussion of the Subgroup's Mandate and Scope on Tuesday's call, with the goal of settling the issue over this call and the next. After all, we need to know what our mandate is in order to know if we ar fulfilling it. Some notes: 1. It's not up to the Subgroup to define the Subgroup's mandate and Scope. This has been done in the foundational documents -- Charter. WS 1 Report and Transition Bylaw. What we need to do is clarify our understanding of that mandate and Scope. 2. As such, the foundational documents need to form both the basis and the boundary of any such clarification or proposal for clarification. These documents were excerpted in my "straw man" mandate document sent around in the last few weeks. 3. Mandate and Scope (defined in these documents) need to be distinguished from potential issues participants might raise. Such issues, by and large, are not mentioned in the foundational documents. 4. The Mandate and Scope will be used to determine if any potential issue is "in scope". 5. Discussions of the issue on the list in advance of the call will be most helpful, since the call is only an hour. 6. While some have said we have gone in circles on this issue, or avoided resolving it. The goal here and now is to avoid that fate, whatever the outcome might be. Finally, I request broad participation on this issue, even if you have given up on this subject of discussion. Thank you. Greg
All, This discussion is specifically called for in our revised Work Plan and Schedule, which was approved by the Subgroup in April. In Section 4 (Work Plan and Schedule Going Forward) subsection 4(d) states: d. Subgroup revisits issue of Scope of the Subgroup 1. Previous discussions on scope should be reviewed prior to discussion 2. Any lists of proposed issues should be reviewed 1. Proposed issues should be acknowledged even if there is no consensus 3. New inputs or views should be solicited 4. Ample work should be done on the list 5. This should not be a complete rehash of prior discussions 6. Group should discuss scope and come to a decision on the Scope of the Subgroup and the questions to be answered by the Subgroup 7. Agenda for Scope meeting should be circulated approximately 7 days in advance to promote maximum participation 8. A deliverable should be prepared reflecting the deliberations and outcome We are up to this point in our Work Plan. It's also worth a reminder of the Work Plan's approach to "issues": 1. GENERAL APPROACH 1. The Subgroup will identify Issues before it goes on to explore Remedies. 2. There must be broad agreement in the Subgroup that a proposed issue is in fact an Issue and that the Issue is one that falls within the remit of the Subgroup. 3. For each Issue, the group will then look at proposed remedies. 1. The group should not discuss a Remedy until an Issue has been identified that requires discussion of that Remedy. 2. The Subgroup needs to consider how a proposed remedy would resolve the Issue (or fail to resolve the Issue or even make it worse).. 3. The Subgroup also needs to consider the effects and consequences of the Remedy. 4. The Subgroup needs to consider how the Potential Remedy would enhance ICANN’s accountability (or have no effect on ICANN’s accountability or even hamper ICANN’s accountability). Under 1(b), the group must consider and agree that a proposed issue is "one that falls within the remit of the Subgroup." Without a common understanding of the "remit of the Subgroup," this step cannot be adequately completed. This is a most practical reason why the mandate and scope of the Subgroup needs to be clarified. I agree with Jorge, up to a point, that "we need to stick to the mandate given to the CCWG ws2 by the chartering organizations." This is found in the Charter, in the Final Proposal and in the Transition Bylaw (which were collected in pertinent part in the document I circulated a couple of weeks ago). Unfortunately, we have not yet arrived at a common understanding of what that mandate is. Annex 12 cannot be read in isolation from the Charter, the Final Proposal, the Bylaw, all of which are "higher level" documents. It is precisely because we are discussing substantive issues that we need to clarify our understanding of the mandate we've been given. The mandate cannot be ascertained by reference to what the group has taken up in discussions at any point in time. Rather, the mandate has to be applied to proposed issues as stated in 1(b) above. If we all agreed on the scope dictated by the Charter, Final Proposal and Bylaw, this would be an easy exercise. However, we have never quite resolved this most basic question. Here is one proposed understanding of our mandate and scope, proposed by David McAuley back in December: [W]e have a mandate for a narrow approach. I say that because the source documents and the larger context in which we are operating, IMO, direct us there (although the source documents may not be as clear as one would like). The bylaw basically says look to the Final Report. On jurisdiction, Annex 12 of the Final Report says much by way of background, and its language regarding “layers of jurisdiction” is really just an acknowledgement. The operative paragraph, in my opinion, is paragraph 30 which begins, “At this point in the CCWG-Accountability’s work, ...” I think reference to “this point” is recognition that what came before, i.e., solidly grounding the accountability measures on California law, is an important precedent to our work, as it must be. Paragraph 30 also goes on to say, “Consideration of jurisdiction in Work Stream 2 will focus on the settlement of dispute jurisdiction …” The gap analysis and identifying potential alternatives are to take place in that context. And there is a larger context in which we operate, with two particular aspects that appear quite important. First, we just spent years and millions of dollars basing ICANN accountability on California law principles. Why would we throw that away? (It’s worth noting as well that California law has demonstrated over 18 years that it actually has allowed ICANN to operate without undo disruption.) And the second aspect is timing/capacity – we are WS2, not the UN. We can address gaps, if they are found, in dispute-resolution issues stemming from jurisdiction. We cannot grant ICANN immunity or enact a treaty, nor do we have the depth, experience, and time to come up with plausibly based recommendations in such regard. There are fair questions being raised that are appropriate for other forums – I personally think we, however, should focus on WS2 as constituted in Annex 12. If this can serve as a statement of our mandate, or at least the basis for such statement, that would help us move past this point. However, it's not up to me to make that judgment. What are people's thoughts or other formulations (based on the "foundational documents")? Greg On Mon, Jun 5, 2017 at 10:46 AM, Thiago Braz Jardim Oliveira < thiago.jardim@itamaraty.gov.br> wrote:
Dear Greg,
I'm not sure there is a need to come back to discussions we already had on the Subgroup's mandate (and in fact I saw no one else proposing this, at least not before you included it yourself as an item in our agenda).
An illustration that there is no such a need is that we will be discussing substantive issues in our upcoming calls, which the Subgroup agreed to as it had no difficulty in seeing them as within our mandate: the impact of OFAC sanctions in ICANN's operations, for example, and the ability of US courts to interfere with the allocation of ccTLDs (upon a suggestion by Tatiana Tropina, which others and I seconded, and which encountered no objection from within the Subgroup as I understand).
Jorge's proposed approach is very sensible, I believe is in line with what the Subgroup said it'd be doing in our upcoming calls, and I fully support it. Perhaps only where "there would be a question of in/out scope" "vis-à-vis a given case", as identified and supported by a reasonable portion of the Subgroup, should we come back to the mandate discussion for specific guidance. But again, the mandate is set out in the foundational documents and we all have had an opportunity to read them.
Best,
Thiago
-----Mensagem original----- De: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounc es@icann.org] Em nome de ws2-jurisdiction-request@icann.org Enviada em: segunda-feira, 5 de junho de 2017 09:00 Para: ws2-jurisdiction@icann.org Assunto: Ws2-jurisdiction Digest, Vol 12, Issue 3
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Today's Topics:
1. Mandate and Scope of Jurisdiction Subgroup will be on Tuesday's Agenda (Greg Shatan) 2. Re: Mandate and Scope of Jurisdiction Subgroup will be on Tuesday's Agenda (Jorge.Cancio@bakom.admin.ch) 3. Re: Mandate and Scope of Jurisdiction Subgroup will be on Tuesday's Agenda (Kavouss Arasteh)
----------------------------------------------------------------------
Message: 1 Date: Sun, 04 Jun 2017 21:39:25 +0000 From: Greg Shatan <gregshatanipc@gmail.com> To: ws2-jurisdiction <ws2-jurisdiction@icann.org> Subject: [Ws2-jurisdiction] Mandate and Scope of Jurisdiction Subgroup will be on Tuesday's Agenda Message-ID: <CA+aOHUSKwbzuxXL-F1riN4j8SVjZhVWUsDmEYBLrYaAVKHtqKA@mail. gmail.com> Content-Type: text/plain; charset="utf-8"
All,
I wanted to provide advance notice that we will pick up the discussion of the Subgroup's Mandate and Scope on Tuesday's call, with the goal of settling the issue over this call and the next. After all, we need to know what our mandate is in order to know if we ar fulfilling it. Some notes:
1. It's not up to the Subgroup to define the Subgroup's mandate and Scope. This has been done in the foundational documents -- Charter. WS 1 Report and Transition Bylaw. What we need to do is clarify our understanding of that mandate and Scope.
2. As such, the foundational documents need to form both the basis and the boundary of any such clarification or proposal for clarification. These documents were excerpted in my "straw man" mandate document sent around in the last few weeks.
3. Mandate and Scope (defined in these documents) need to be distinguished from potential issues participants might raise. Such issues, by and large, are not mentioned in the foundational documents.
4. The Mandate and Scope will be used to determine if any potential issue is "in scope".
5. Discussions of the issue on the list in advance of the call will be most helpful, since the call is only an hour.
6. While some have said we have gone in circles on this issue, or avoided resolving it. The goal here and now is to avoid that fate, whatever the outcome might be.
Finally, I request broad participation on this issue, even if you have given up on this subject of discussion.
Thank you.
Greg
I fully support David’s statement of the mandate’s jurisdiction. It is depressing indeed that a vocal minority of people continue to seek an expansion when it is neither required by our mandate nor supported by a majority of our subgroup. The continued insistence of some on relitigating issues over and over again is both delaying important work and, frankly, providing an excellent example of the way the “heckler’s veto” works in multi-stakeholder processes. I have been silent on this list because there is absolutely nothing new that has been said in the last 3 months that isn’t exactly what was said before hand. Like Nigel, I think we should bury this dead horse instead of beating it. 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: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Greg Shatan Sent: Wednesday, June 7, 2017 4:35 PM To: ws2-jurisdiction@icann.org Subject: Re: [Ws2-jurisdiction] Mandate and Scope of Jurisdiction Subgroup will be on Tuesday's Agenda All, This discussion is specifically called for in our revised Work Plan and Schedule, which was approved by the Subgroup in April. In Section 4 (Work Plan and Schedule Going Forward) subsection 4(d) states: d. Subgroup revisits issue of Scope of the Subgroup i. Previous discussions on scope should be reviewed prior to discussion ii. Any lists of proposed issues should be reviewed 1. Proposed issues should be acknowledged even if there is no consensus iii. New inputs or views should be solicited iv. Ample work should be done on the list v. This should not be a complete rehash of prior discussions vi. Group should discuss scope and come to a decision on the Scope of the Subgroup and the questions to be answered by the Subgroup vii. Agenda for Scope meeting should be circulated approximately 7 days in advance to promote maximum participation viii. A deliverable should be prepared reflecting the deliberations and outcome We are up to this point in our Work Plan. It's also worth a reminder of the Work Plan's approach to "issues": 1. GENERAL APPROACH a. The Subgroup will identify Issues before it goes on to explore Remedies. b. There must be broad agreement in the Subgroup that a proposed issue is in fact an Issue and that the Issue is one that falls within the remit of the Subgroup. c. For each Issue, the group will then look at proposed remedies. 1. The group should not discuss a Remedy until an Issue has been identified that requires discussion of that Remedy. 2. The Subgroup needs to consider how a proposed remedy would resolve the Issue (or fail to resolve the Issue or even make it worse).. 3. The Subgroup also needs to consider the effects and consequences of the Remedy. 4. The Subgroup needs to consider how the Potential Remedy would enhance ICANN’s accountability (or have no effect on ICANN’s accountability or even hamper ICANN’s accountability). Under 1(b), the group must consider and agree that a proposed issue is "one that falls within the remit of the Subgroup." Without a common understanding of the "remit of the Subgroup," this step cannot be adequately completed. This is a most practical reason why the mandate and scope of the Subgroup needs to be clarified. I agree with Jorge, up to a point, that "we need to stick to the mandate given to the CCWG ws2 by the chartering organizations." This is found in the Charter, in the Final Proposal and in the Transition Bylaw (which were collected in pertinent part in the document I circulated a couple of weeks ago). Unfortunately, we have not yet arrived at a common understanding of what that mandate is. Annex 12 cannot be read in isolation from the Charter, the Final Proposal, the Bylaw, all of which are "higher level" documents. It is precisely because we are discussing substantive issues that we need to clarify our understanding of the mandate we've been given. The mandate cannot be ascertained by reference to what the group has taken up in discussions at any point in time. Rather, the mandate has to be applied to proposed issues as stated in 1(b) above. If we all agreed on the scope dictated by the Charter, Final Proposal and Bylaw, this would be an easy exercise. However, we have never quite resolved this most basic question. Here is one proposed understanding of our mandate and scope, proposed by David McAuley back in December: [W]e have a mandate for a narrow approach. I say that because the source documents and the larger context in which we are operating, IMO, direct us there (although the source documents may not be as clear as one would like). The bylaw basically says look to the Final Report. On jurisdiction, Annex 12 of the Final Report says much by way of background, and its language regarding “layers of jurisdiction” is really just an acknowledgement. The operative paragraph, in my opinion, is paragraph 30 which begins, “At this point in the CCWG-Accountability’s work, ...” I think reference to “this point” is recognition that what came before, i.e., solidly grounding the accountability measures on California law, is an important precedent to our work, as it must be. Paragraph 30 also goes on to say, “Consideration of jurisdiction in Work Stream 2 will focus on the settlement of dispute jurisdiction …” The gap analysis and identifying potential alternatives are to take place in that context. And there is a larger context in which we operate, with two particular aspects that appear quite important. First, we just spent years and millions of dollars basing ICANN accountability on California law principles. Why would we throw that away? (It’s worth noting as well that California law has demonstrated over 18 years that it actually has allowed ICANN to operate without undo disruption.) And the second aspect is timing/capacity – we are WS2, not the UN. We can address gaps, if they are found, in dispute-resolution issues stemming from jurisdiction. We cannot grant ICANN immunity or enact a treaty, nor do we have the depth, experience, and time to come up with plausibly based recommendations in such regard. There are fair questions being raised that are appropriate for other forums – I personally think we, however, should focus on WS2 as constituted in Annex 12. If this can serve as a statement of our mandate, or at least the basis for such statement, that would help us move past this point. However, it's not up to me to make that judgment. What are people's thoughts or other formulations (based on the "foundational documents")? Greg On Mon, Jun 5, 2017 at 10:46 AM, Thiago Braz Jardim Oliveira <thiago.jardim@itamaraty.gov.br <mailto:thiago.jardim@itamaraty.gov.br> > wrote: Dear Greg, I'm not sure there is a need to come back to discussions we already had on the Subgroup's mandate (and in fact I saw no one else proposing this, at least not before you included it yourself as an item in our agenda). An illustration that there is no such a need is that we will be discussing substantive issues in our upcoming calls, which the Subgroup agreed to as it had no difficulty in seeing them as within our mandate: the impact of OFAC sanctions in ICANN's operations, for example, and the ability of US courts to interfere with the allocation of ccTLDs (upon a suggestion by Tatiana Tropina, which others and I seconded, and which encountered no objection from within the Subgroup as I understand). Jorge's proposed approach is very sensible, I believe is in line with what the Subgroup said it'd be doing in our upcoming calls, and I fully support it. Perhaps only where "there would be a question of in/out scope" "vis-à-vis a given case", as identified and supported by a reasonable portion of the Subgroup, should we come back to the mandate discussion for specific guidance. But again, the mandate is set out in the foundational documents and we all have had an opportunity to read them. Best, Thiago -----Mensagem original----- De: ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> ] Em nome de ws2-jurisdiction-request@icann.org <mailto:ws2-jurisdiction-request@icann.org> Enviada em: segunda-feira, 5 de junho de 2017 09:00 Para: ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> Assunto: Ws2-jurisdiction Digest, Vol 12, Issue 3 Send Ws2-jurisdiction mailing list submissions to ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> To subscribe or unsubscribe via the World Wide Web, visit https://mm.icann.org/mailman/listinfo/ws2-jurisdiction or, via email, send a message with subject or body 'help' to ws2-jurisdiction-request@icann.org <mailto:ws2-jurisdiction-request@icann.org> You can reach the person managing the list at ws2-jurisdiction-owner@icann.org <mailto:ws2-jurisdiction-owner@icann.org> When replying, please edit your Subject line so it is more specific than "Re: Contents of Ws2-jurisdiction digest..." Today's Topics: 1. Mandate and Scope of Jurisdiction Subgroup will be on Tuesday's Agenda (Greg Shatan) 2. Re: Mandate and Scope of Jurisdiction Subgroup will be on Tuesday's Agenda (Jorge.Cancio@bakom.admin.ch <mailto:Jorge.Cancio@bakom.admin.ch> ) 3. Re: Mandate and Scope of Jurisdiction Subgroup will be on Tuesday's Agenda (Kavouss Arasteh) ---------------------------------------------------------------------- Message: 1 Date: Sun, 04 Jun 2017 21:39:25 +0000 From: Greg Shatan <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com> > To: ws2-jurisdiction <ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> > Subject: [Ws2-jurisdiction] Mandate and Scope of Jurisdiction Subgroup will be on Tuesday's Agenda Message-ID: <CA+aOHUSKwbzuxXL-F1riN4j8SVjZhVWUsDmEYBLrYaAVKHtqKA@mail.gmail.com <mailto:CA%2BaOHUSKwbzuxXL-F1riN4j8SVjZhVWUsDmEYBLrYaAVKHtqKA@mail.gmail.com> > Content-Type: text/plain; charset="utf-8" All, I wanted to provide advance notice that we will pick up the discussion of the Subgroup's Mandate and Scope on Tuesday's call, with the goal of settling the issue over this call and the next. After all, we need to know what our mandate is in order to know if we ar fulfilling it. Some notes: 1. It's not up to the Subgroup to define the Subgroup's mandate and Scope. This has been done in the foundational documents -- Charter. WS 1 Report and Transition Bylaw. What we need to do is clarify our understanding of that mandate and Scope. 2. As such, the foundational documents need to form both the basis and the boundary of any such clarification or proposal for clarification. These documents were excerpted in my "straw man" mandate document sent around in the last few weeks. 3. Mandate and Scope (defined in these documents) need to be distinguished from potential issues participants might raise. Such issues, by and large, are not mentioned in the foundational documents. 4. The Mandate and Scope will be used to determine if any potential issue is "in scope". 5. Discussions of the issue on the list in advance of the call will be most helpful, since the call is only an hour. 6. While some have said we have gone in circles on this issue, or avoided resolving it. The goal here and now is to avoid that fate, whatever the outcome might be. Finally, I request broad participation on this issue, even if you have given up on this subject of discussion. Thank you. Greg
Hello all, A quick response to say that I also support David's statement. The narrower the better. And for the sake of keeping up with other email chains, I do think that examining the consequences of ICANN being a California not for profit corporation vs anything else is part of the mandate. However when ICANN's place of incorporation comes into the picture, our focus should precisely be on the consequences of that (e.g. issues with OFAC sanctions) rather than discussing possible changes, which would not be for us alone to reflect on or (even less so) decide. Best, 2017-06-08 0:52 GMT+03:00 Paul Rosenzweig < paul.rosenzweig@redbranchconsulting.com>:
I fully support David’s statement of the mandate’s jurisdiction. It is depressing indeed that a vocal minority of people continue to seek an expansion when it is neither required by our mandate nor supported by a majority of our subgroup. The continued insistence of some on relitigating issues over and over again is both delaying important work and, frankly, providing an excellent example of the way the “heckler’s veto” works in multi-stakeholder processes.
I have been silent on this list because there is absolutely nothing new that has been said in the last 3 months that isn’t exactly what was said before hand. Like Nigel, I think we should bury this dead horse instead of beating it.
Paul
Paul Rosenzweig
paul.rosenzweig@redbranchconsulting.com
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M: +1 (202) 329-9650
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*From:* ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction- bounces@icann.org] *On Behalf Of *Greg Shatan *Sent:* Wednesday, June 7, 2017 4:35 PM *To:* ws2-jurisdiction@icann.org
*Subject:* Re: [Ws2-jurisdiction] Mandate and Scope of Jurisdiction Subgroup will be on Tuesday's Agenda
All,
This discussion is specifically called for in our revised Work Plan and Schedule, which was approved by the Subgroup in April. In Section 4 (Work Plan and Schedule Going Forward) subsection 4(d) states:
d. Subgroup revisits issue of Scope of the Subgroup
1. Previous discussions on scope should be reviewed prior to discussion 2. Any lists of proposed issues should be reviewed
1. Proposed issues should be acknowledged even if there is no consensus
1. New inputs or views should be solicited 2. Ample work should be done on the list 3. This should not be a complete rehash of prior discussions 4. Group should discuss scope and come to a decision on the Scope of the Subgroup and the questions to be answered by the Subgroup 5. Agenda for Scope meeting should be circulated approximately 7 days in advance to promote maximum participation 6. A deliverable should be prepared reflecting the deliberations and outcome
We are up to this point in our Work Plan.
It's also worth a reminder of the Work Plan's approach to "issues":
1. *GENERAL APPROACH*
1. The Subgroup will identify *Issues *before it goes on to explore* Remedies.* 2. There must be broad agreement in the Subgroup that a proposed issue is in fact an *Issue *and that the *Issue *is one that falls within the remit of the Subgroup. 3. For each *Issue,* the group will then look at proposed remedies.
1. The group should not discuss a *Remedy* until an *Issue* has been identified that requires discussion of that *Remedy*. 2. The Subgroup needs to consider how a proposed remedy would resolve the *Issue *(or fail to resolve the Issue or even make it worse).. 3. The Subgroup also needs to consider the effects and consequences of the *Remedy*. 4. The Subgroup needs to consider how the *Potential Remedy* would enhance ICANN’s accountability (or have no effect on ICANN’s accountability or even hamper ICANN’s accountability).
Under 1(b), the group must consider and agree that a proposed issue is "one that falls within the remit of the Subgroup." Without a common understanding of the "remit of the Subgroup," this step cannot be adequately completed. This is a most practical reason why the mandate and scope of the Subgroup needs to be clarified.
I agree with Jorge, up to a point, that "we need to stick to the mandate given to the CCWG ws2 by the chartering organizations." This is found in the Charter, in the Final Proposal and in the Transition Bylaw (which were collected in pertinent part in the document I circulated a couple of weeks ago). Unfortunately, we have not yet arrived at a common understanding of what that mandate is. Annex 12 cannot be read in isolation from the Charter, the Final Proposal, the Bylaw, all of which are "higher level" documents.
It is precisely because we are discussing substantive issues that we need to clarify our understanding of the mandate we've been given. The mandate cannot be ascertained by reference to what the group has taken up in discussions at any point in time. Rather, the mandate has to be applied to proposed issues as stated in 1(b) above.
If we all agreed on the scope dictated by the Charter, Final Proposal and Bylaw, this would be an easy exercise. However, we have never quite resolved this most basic question. Here is one proposed understanding of our mandate and scope, proposed by David McAuley back in December:
[W]e have a mandate for a narrow approach. I say that because the source documents and the larger context in which we are operating, IMO, direct us there (although the source documents may not be as clear as one would like).
The bylaw basically says look to the Final Report. On jurisdiction, Annex 12 of the Final Report says much by way of background, and its language regarding “layers of jurisdiction” is really just an acknowledgement. The operative paragraph, in my opinion, is paragraph 30 which begins, “At this point in the CCWG-Accountability’s work, ...” I think reference to “this point” is recognition that what came before, i.e., solidly grounding the accountability measures on California law, is an important precedent to our work, as it must be. Paragraph 30 also goes on to say, “Consideration of jurisdiction in Work Stream 2 will focus on the settlement of dispute jurisdiction …” The gap
analysis and identifying potential alternatives are to take place in that context. And there is a larger context in which we operate, with two particular aspects that appear quite important. First, we just spent years and millions of dollars basing ICANN accountability on California law principles. Why would we throw that away? (It’s worth noting as well that California law has demonstrated over 18 years that it actually has allowed ICANN to operate without undo disruption.) And the second aspect is timing/capacity – we are WS2, not the UN. We can address gaps, if they are found, in dispute-resolution issues stemming from jurisdiction. We cannot grant ICANN immunity or enact a treaty, nor do we have the depth, experience, and time to come up with plausibly based recommendations in such regard. There are fair questions being raised that are appropriate for other forums – I personally think we, however, should focus on WS2 as constituted in Annex 12.
If this can serve as a statement of our mandate, or at least the basis for such statement, that would help us move past this point. However, it's not up to me to make that judgment.
What are people's thoughts or other formulations (based on the "foundational documents")?
Greg
On Mon, Jun 5, 2017 at 10:46 AM, Thiago Braz Jardim Oliveira < thiago.jardim@itamaraty.gov.br> wrote:
Dear Greg,
I'm not sure there is a need to come back to discussions we already had on the Subgroup's mandate (and in fact I saw no one else proposing this, at least not before you included it yourself as an item in our agenda).
An illustration that there is no such a need is that we will be discussing substantive issues in our upcoming calls, which the Subgroup agreed to as it had no difficulty in seeing them as within our mandate: the impact of OFAC sanctions in ICANN's operations, for example, and the ability of US courts to interfere with the allocation of ccTLDs (upon a suggestion by Tatiana Tropina, which others and I seconded, and which encountered no objection from within the Subgroup as I understand).
Jorge's proposed approach is very sensible, I believe is in line with what the Subgroup said it'd be doing in our upcoming calls, and I fully support it. Perhaps only where "there would be a question of in/out scope" "vis-à-vis a given case", as identified and supported by a reasonable portion of the Subgroup, should we come back to the mandate discussion for specific guidance. But again, the mandate is set out in the foundational documents and we all have had an opportunity to read them.
Best,
Thiago
-----Mensagem original----- De: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction- bounces@icann.org] Em nome de ws2-jurisdiction-request@icann.org Enviada em: segunda-feira, 5 de junho de 2017 09:00 Para: ws2-jurisdiction@icann.org Assunto: Ws2-jurisdiction Digest, Vol 12, Issue 3
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Today's Topics:
1. Mandate and Scope of Jurisdiction Subgroup will be on Tuesday's Agenda (Greg Shatan) 2. Re: Mandate and Scope of Jurisdiction Subgroup will be on Tuesday's Agenda (Jorge.Cancio@bakom.admin.ch) 3. Re: Mandate and Scope of Jurisdiction Subgroup will be on Tuesday's Agenda (Kavouss Arasteh)
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Message: 1 Date: Sun, 04 Jun 2017 21:39:25 +0000 From: Greg Shatan <gregshatanipc@gmail.com> To: ws2-jurisdiction <ws2-jurisdiction@icann.org> Subject: [Ws2-jurisdiction] Mandate and Scope of Jurisdiction Subgroup will be on Tuesday's Agenda Message-ID: <CA+aOHUSKwbzuxXL-F1riN4j8SVjZhVWUsDmEYBLrYaAVKH tqKA@mail.gmail.com> Content-Type: text/plain; charset="utf-8"
All,
I wanted to provide advance notice that we will pick up the discussion of the Subgroup's Mandate and Scope on Tuesday's call, with the goal of settling the issue over this call and the next. After all, we need to know what our mandate is in order to know if we ar fulfilling it. Some notes:
1. It's not up to the Subgroup to define the Subgroup's mandate and Scope. This has been done in the foundational documents -- Charter. WS 1 Report and Transition Bylaw. What we need to do is clarify our understanding of that mandate and Scope.
2. As such, the foundational documents need to form both the basis and the boundary of any such clarification or proposal for clarification. These documents were excerpted in my "straw man" mandate document sent around in the last few weeks.
3. Mandate and Scope (defined in these documents) need to be distinguished from potential issues participants might raise. Such issues, by and large, are not mentioned in the foundational documents.
4. The Mandate and Scope will be used to determine if any potential issue is "in scope".
5. Discussions of the issue on the list in advance of the call will be most helpful, since the call is only an hour.
6. While some have said we have gone in circles on this issue, or avoided resolving it. The goal here and now is to avoid that fate, whatever the outcome might be.
Finally, I request broad participation on this issue, even if you have given up on this subject of discussion.
Thank you.
Greg
I also support David's position from back in December. Matthew On 08/06/2017 01:19, Raphaël BEAUREGARD-LACROIX wrote:
Hello all,
A quick response to say that I also support David's statement. The narrower the better.
And for the sake of keeping up with other email chains, I do think that examining the consequences of ICANN being a California not for profit corporation vs anything else is part of the mandate. However when ICANN's place of incorporation comes into the picture, our focus should precisely be on the consequences of that (e.g. issues with OFAC sanctions) rather than discussing possible changes, which would not be for us alone to reflect on or (even less so) decide.
Best,
2017-06-08 0:52 GMT+03:00 Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com>>:
I fully support David’s statement of the mandate’s jurisdiction. It is depressing indeed that a vocal minority of people continue to seek an expansion when it is neither required by our mandate nor supported by a majority of our subgroup. The continued insistence of some on relitigating issues over and over again is both delaying important work and, frankly, providing an excellent example of the way the “heckler’s veto” works in multi-stakeholder processes.
I have been silent on this list because there is absolutely nothing new that has been said in the last 3 months that isn’t exactly what was said before hand. Like Nigel, I think we should bury this dead horse instead of beating it.
Paul
Paul Rosenzweig
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*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:* Wednesday, June 7, 2017 4:35 PM *To:* ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org>
*Subject:* Re: [Ws2-jurisdiction] Mandate and Scope of Jurisdiction Subgroup will be on Tuesday's Agenda
All,
This discussion is specifically called for in our revised Work Plan and Schedule, which was approved by the Subgroup in April. In Section 4 (Work Plan and Schedule Going Forward) subsection 4(d) states:
d. Subgroup revisits issue of Scope of the Subgroup
1. Previous discussions on scope should be reviewed prior to discussion 2. Any lists of proposed issues should be reviewed
1. Proposed issues should be acknowledged even if there is no consensus
3. New inputs or views should be solicited 4. Ample work should be done on the list 5. This should not be a complete rehash of prior discussions 6. Group should discuss scope and come to a decision on the Scope of the Subgroup and the questions to be answered by the Subgroup 7. Agenda for Scope meeting should be circulated approximately 7 days in advance to promote maximum participation 8. A deliverable should be prepared reflecting the deliberations and outcome
We are up to this point in our Work Plan.
It's also worth a reminder of the Work Plan's approach to "issues":
1. *GENERAL APPROACH*
1. The Subgroup will identify *Issues *before it goes on to explore*Remedies.* 2. There must be broad agreement in the Subgroup that a proposed issue is in fact an *Issue *and that the *Issue *is one that falls within the remit of the Subgroup. 3. For each *Issue,* the group will then look at proposed remedies.
1. The group should not discuss a *Remedy* until an *Issue* has been identified that requires discussion of that *Remedy*. 2. The Subgroup needs to consider how a proposed remedy would resolve the *Issue *(or fail to resolve the Issue or even make it worse).. 3. The Subgroup also needs to consider the effects and consequences of the *Remedy*. 4. The Subgroup needs to consider how the *Potential Remedy* would enhance ICANN’s accountability (or have no effect on ICANN’s accountability or even hamper ICANN’s accountability).
Under 1(b), the group must consider and agree that a proposed issue is "one that falls within the remit of the Subgroup." Without a common understanding of the "remit of the Subgroup," this step cannot be adequately completed. This is a most practical reason why the mandate and scope of the Subgroup needs to be clarified.
I agree with Jorge, up to a point, that "we need to stick to the mandate given to the CCWG ws2 by the chartering organizations." This is found in the Charter, in the Final Proposal and in the Transition Bylaw (which were collected in pertinent part in the document I circulated a couple of weeks ago). Unfortunately, we have not yet arrived at a common understanding of what that mandate is. Annex 12 cannot be read in isolation from the Charter, the Final Proposal, the Bylaw, all of which are "higher level" documents.
It is precisely because we are discussing substantive issues that we need to clarify our understanding of the mandate we've been given. The mandate cannot be ascertained by reference to what the group has taken up in discussions at any point in time. Rather, the mandate has to be applied to proposed issues as stated in 1(b) above.
If we all agreed on the scope dictated by the Charter, Final Proposal and Bylaw, this would be an easy exercise. However, we have never quite resolved this most basic question. Here is one proposed understanding of our mandate and scope, proposed by David McAuley back in December:
[W]e have a mandate for a narrow approach. I say that because the source documents and the larger context in which we are operating, IMO, direct us there (although the source documents may not be as clear as one would like).
The bylaw basically says look to the Final Report. On jurisdiction, Annex 12 of the Final Report says much by way of background, and its language regarding “layers of jurisdiction” is really just an acknowledgement. The operative paragraph, in my opinion, is paragraph 30 which begins, “At this point in the CCWG-Accountability’s work, ...” I think reference to “this point” is recognition that what came before, i.e., solidly grounding the accountability measures on California law, is an important precedent to our work, as it must be. Paragraph 30 also goes on to say, “Consideration of jurisdiction in Work Stream 2 will focus on the settlement of dispute jurisdiction …” The gap
analysis and identifying potential alternatives are to take place in that context. And there is a larger context in which we operate, with two particular aspects that appear quite important. First, we just spent years and millions of dollars basing ICANN accountability on California law principles. Why would we throw that away? (It’s worth noting as well that California law has demonstrated over 18 years that it actually has allowed ICANN to operate without undo disruption.) And the second aspect is timing/capacity – we are WS2, not the UN. We can address gaps, if they are found, in dispute-resolution issues stemming from jurisdiction. We cannot grant ICANN immunity or enact a treaty, nor do we have the depth, experience, and time to come up with plausibly based recommendations in such regard. There are fair questions being raised that are appropriate for other forums – I personally think we, however, should focus on WS2 as constituted in Annex 12.
If this can serve as a statement of our mandate, or at least the basis for such statement, that would help us move past this point. However, it's not up to me to make that judgment.
What are people's thoughts or other formulations (based on the "foundational documents")?
Greg
On Mon, Jun 5, 2017 at 10:46 AM, Thiago Braz Jardim Oliveira <thiago.jardim@itamaraty.gov.br <mailto:thiago.jardim@itamaraty.gov.br>> wrote:
Dear Greg,
I'm not sure there is a need to come back to discussions we already had on the Subgroup's mandate (and in fact I saw no one else proposing this, at least not before you included it yourself as an item in our agenda).
An illustration that there is no such a need is that we will be discussing substantive issues in our upcoming calls, which the Subgroup agreed to as it had no difficulty in seeing them as within our mandate: the impact of OFAC sanctions in ICANN's operations, for example, and the ability of US courts to interfere with the allocation of ccTLDs (upon a suggestion by Tatiana Tropina, which others and I seconded, and which encountered no objection from within the Subgroup as I understand).
Jorge's proposed approach is very sensible, I believe is in line with what the Subgroup said it'd be doing in our upcoming calls, and I fully support it. Perhaps only where "there would be a question of in/out scope" "vis-à-vis a given case", as identified and supported by a reasonable portion of the Subgroup, should we come back to the mandate discussion for specific guidance. But again, the mandate is set out in the foundational documents and we all have had an opportunity to read them.
Best,
Thiago
-----Mensagem original----- De: ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org>] Em nome de ws2-jurisdiction-request@icann.org <mailto:ws2-jurisdiction-request@icann.org> Enviada em: segunda-feira, 5 de junho de 2017 09:00 Para: ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> Assunto: Ws2-jurisdiction Digest, Vol 12, Issue 3
Send Ws2-jurisdiction mailing list submissions to ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org>
To subscribe or unsubscribe via the World Wide Web, visit https://mm.icann.org/mailman/listinfo/ws2-jurisdiction <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction> or, via email, send a message with subject or body 'help' to ws2-jurisdiction-request@icann.org <mailto:ws2-jurisdiction-request@icann.org>
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When replying, please edit your Subject line so it is more specific than "Re: Contents of Ws2-jurisdiction digest..."
Today's Topics:
1. Mandate and Scope of Jurisdiction Subgroup will be on Tuesday's Agenda (Greg Shatan) 2. Re: Mandate and Scope of Jurisdiction Subgroup will be on Tuesday's Agenda (Jorge.Cancio@bakom.admin.ch <mailto:Jorge.Cancio@bakom.admin.ch>) 3. Re: Mandate and Scope of Jurisdiction Subgroup will be on Tuesday's Agenda (Kavouss Arasteh)
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Message: 1 Date: Sun, 04 Jun 2017 21:39:25 +0000 From: Greg Shatan <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>> To: ws2-jurisdiction <ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org>> Subject: [Ws2-jurisdiction] Mandate and Scope of Jurisdiction Subgroup will be on Tuesday's Agenda Message-ID:
<CA+aOHUSKwbzuxXL-F1riN4j8SVjZhVWUsDmEYBLrYaAVKHtqKA@mail.gmail.com <mailto:CA%2BaOHUSKwbzuxXL-F1riN4j8SVjZhVWUsDmEYBLrYaAVKHtqKA@mail.gmail.com>> Content-Type: text/plain; charset="utf-8"
All,
I wanted to provide advance notice that we will pick up the discussion of the Subgroup's Mandate and Scope on Tuesday's call, with the goal of settling the issue over this call and the next. After all, we need to know what our mandate is in order to know if we ar fulfilling it. Some notes:
1. It's not up to the Subgroup to define the Subgroup's mandate and Scope. This has been done in the foundational documents -- Charter. WS 1 Report and Transition Bylaw. What we need to do is clarify our understanding of that mandate and Scope.
2. As such, the foundational documents need to form both the basis and the boundary of any such clarification or proposal for clarification. These documents were excerpted in my "straw man" mandate document sent around in the last few weeks.
3. Mandate and Scope (defined in these documents) need to be distinguished from potential issues participants might raise. Such issues, by and large, are not mentioned in the foundational documents.
4. The Mandate and Scope will be used to determine if any potential issue is "in scope".
5. Discussions of the issue on the list in advance of the call will be most helpful, since the call is only an hour.
6. While some have said we have gone in circles on this issue, or avoided resolving it. The goal here and now is to avoid that fate, whatever the outcome might be.
Finally, I request broad participation on this issue, even if you have given up on this subject of discussion.
Thank you.
Greg
participants (5)
-
Greg Shatan -
Matthew Shears -
Paul Rosenzweig -
Raphaël BEAUREGARD-LACROIX -
Thiago Braz Jardim Oliveira