Focus, Working Method and Revisions to Proposed Questions: RESPONSE REQUESTED [was: Jurisdiction Proposed Questions and Poll Results]
All, I'm sending this to the Jurisdiction subgroup list, since this was initially send to a discussion thread on jurisdiction taking place on the CCWG list. *Please respond here, rather than there. Thank you.* Greg The following responses were received on the Accountability list: *Parminder*: Greg/ All I think the Alternative 1, which you take as likely candidate for broader support, is fine. I list this formulation below: What are the advantages or disadvantages, if any, relating to ICANN's jurisdiction*, particularly with regard to the actual operation of ICANN’s policies and accountability mechanisms? Please support your response with appropriate examples, references to specific laws, case studies, other studies, and analysis. In particular, please indicate if there are current or past instances that highlight such advantages or problems. (* For these questions, “ICANN’s jurisdiction” refers to (a) ICANN being subject to U.S. and California law as a result of its incorporation and location in California, (b) ICANN being subject to the laws of any other country as a result of its location within or contacts with that country, or (c) any “choice of law” or venue provisions in agreements with ICANN.) ENDS Lets move on with it. We are spending too much time on framing a question. *Kavouss Arasteh: * Grec, Tks again, As I said I believe ,it is counter productive to discuss many alternative, I could agree with formulation of Parminder Regards Kavouss *Sam Lanfranco:* Greg, Thank you for presenting alternatives for reaching agreement on a* Roadmap for Moving Forward to identify operational issues embedded in the overall “jurisdiction” issue*. It is important to recognize that what is being proposed is the choice of roadmap for moving forward. Where this takes us will flow from the assembly of evidence, the application of analysis, and the resulting array of possible options for addressing jurisdiction base operational issues. Sam Lanfranco ---------- Forwarded message ---------- From: Greg Shatan <gregshatanipc@gmail.com> Date: Tue, Dec 27, 2016 at 2:56 AM Subject: Re: [CCWG-ACCT] RES: Jurisdiction Proposed Questions and Poll Results To: "accountability-cross-community@icann.org" < accountability-cross-community@icann.org> All: Two quick but important points: 1. We have strayed from the basic topic in front of us, which is to decide on the formulation of the questions to be sent out. I have gone through the emails and meeting notes and pulled the alternative formulations and revisions in to a single document, attached to this email. With regard to question 4, I believe that the best way to move forward is to see if one of the alternatives gets stronger support within the CCWG. If we can get to a point where there is broad support for the question without significant opposition that may resolve issues relating to whether and when this question will be sent out. 2. Our overall agreed-upon working method is to first identify, discuss and arrive at a list of issues that raise concerns, and then move on to identifying, discussing and arriving at a list of potential remedies for each issue on our list. We are still working on issues. For a remedy to be up for discussion when we move to discussing remedies, that remedy needs to provide a solution to an issue. We can't discuss a potential remedy without having an issue it is intended to solve. If there is a potential "remedy" but it does not solve any of our issues, we won't discuss it. We've already put aside one potential "remedy" until we see whether we identify any issues it would solve -- the "remedy" of changing ICANN's jurisdiction of incorporation or headquarters location. "Immunity" is another potential remedy that we need to deal with the same way. Skipping forward to discussions of remedies is only slowing down our discussion of issues. I strongly suggest we refocus on issues, so that we can get to the discussion of remedies. Once we've agreed on a list of issues, a discussion of remedies will be more productive. Our working method of dealing with issues first and then remedies may also help us find agreement on a way to deal with question 4. Questions 1-3 clearly deal with issues. Perhaps a version of question 4 that is limited to asking for issues will get broader support ("Alternative 1" on the attachment may fit this description.) Greg On Mon, Dec 26, 2016 at 1:41 PM, Seun Ojedeji <seun.ojedeji@gmail.com> wrote:
Hello,
I also don't see the logic in sending two questionnaires. There may be some logic in treating the responses to questions 1 to 3 separate from question 4, but we are not yet at that stage. It will be better the question is not added at all than to send it as a separate questionnaire.
Overall I am indifferent about adding or not adding but since there is seemingly a lot of support to add, I don't see the significant harm it will cause by doing that[1]. Based on the response of the Co-Chairs to my question, I would suggest that it's better to let all the 4 questions be presented and let's see what issues emerge from their responses. Then we can start to do a few round trips to legal and hopefully remind ourselves the possible consequences of addressing certain issues in a particular way. Some of which has already been echoed during WS1.
Regards 1. Nevermind that it could generate some political news/headlines but am sure this group is already used to that by now ;-) Sent from my LG G4 Kindly excuse brevity and typos
On 26 Dec 2016 19:19, "avri doria" <avri@acm.org> wrote:
Hi,
Where we differ is on the idea of separating the questions into 2 questionnaires.
I think it is going to be hard enough to get people to pay attention to one questionnaire, asking them to do two is daunting. A fourth question will not test their patience in the same way another questionnaire would.
So with Kavouss I say:
Allow all 4 questions go out and then wait what will happens .
avri
On 26-Dec-16 11:42, Mueller, Milton L wrote:
-----Original Message----- At the same time, let us all try to return to a constructive and step-by-step approach, building on the progress made so far, in order to make progress on our mandate, established by the whole multistakeholder community back in Marrakech. I agree, and I think both Pedro's and Phil's position are based on some confusion of issues. It we calm down a bit and look at this more carefully we can make progress.
Pedro may be confusing the inclusion or exclusion of Question 4 in our initial request with the question of whether we explore issues in US jurisdiction at all. But excluding Question 4 from our initial request for information is not the same as a refusal to explore the questions it raises. I have proposed _separating_ Q4 from the other 3 questions, not eliminating it entirely. I proposed this not because I want to avoid the questions Q4 poses, but because I want those questions to be developed better and I want to avoid conflating it with the narrower questions about dispute resolution that Q's 1-3 were designed to address. It is a mistake to put those two things together. The information we gather from Q's 1-3 will suffer from their attachment to the potentially more controversial issues raised by Q4. Let me also add that the divisive insistence that this is a matter of US citizens vs non-US citizens needs to be dropped. Avri and myself, e.g., are both US citizens/residents and have serious concerns about possible intrusions of US foreign policy and other nationalistic and governmental concerns into ICANN matters. At the same time we are both staunch supporters of a nongovernmental model in this space and have no inherent objection to California law as ICANN's basis.
Phil Corwin on the other hand is confusing the issue of whether ICANN's corporate HQ is in California with the question of whether ICANN will be an intergovernmental entity. These questions have very little to do with each other. It is of course true that there are still a few people out there who would like for ICANN to become intergovernmental, but they are a tiny minority and the weight of history is totally against them. Put more bluntly, it ain't gonna happen. Supporters of the MS model and opponents of intergovernmentalism have legitimate reasons to investigate the impact of US jurisdiction, because the US is a global power with very specific foreign policy and military interests. US jurisdiction thus may have the potential to create opportunities for one government - the US - to have an inappropriate level of influence over ICANN's transnational, nonstate actor based governance processes. One can consider those issues without implying that ICANN's corporate HQ needs to move.
So let's stop making the status of Q4 a proxy for a long-settled war over whether ICANN is private or governmental, and let's stop pretending that those who want to separate the issues raised by Q4 from the narrower more focused issues in Q1-3 are trying to avoid legitimate issues.
As for creating a separate CCWG, are you kidding? This is the CCWG subgroup created specifically for jurisdictional issues and we don't make difficult issues easier to resolve by creating additional structures.
Dr. Milton L. Mueller Professor, School of Public Policy Georgia Institute of Technology
In this vein, and consistent with our conversation in Hyderabad, let us continue with the line directed to requesting input from the wider community.
The four questions developed so far will allow us to gather much needed input on facts, examples and well-founded opinions on the influence of ICANNs jurisdiction, taking into account its multiple layers, on its operations and accountability.
If we all are constructive and accept esch others' views as worthy of further discussion and study, we will be able to get this important step further.
Hence, let us please stay on the right track and finalize formulations of all four questions, and keep up the good spirit of cooperation.
with my best wishes for you all during the festivities
kind regards
Jorge
________________________________
Von: Pedro Ivo Ferraz da Silva <pedro.ivo@itamaraty.gov.br> Datum: 24. Dezember 2016 um 15:53:55 MEZ An: Greg Shatan <gregshatanipc@gmail.com>, parminder <parminder@itforchange.net>, Kavouss Arasteh <kavouss.arasteh@gmail.com> Cc: accountability-cross-community@icann.org <accountability-cross- community@icann.org> Betreff: [CCWG-ACCT] RES: Jurisdiction Proposed Questions and Poll Results
Dear CCWG-colleagues,
After reading some comments in this email thread, I must admit to be really disappointed.
Some of our colleagues in the CCWG seem to have forgotten - perhaps on purpose - that the topic of jurisdiction was allocated to WS2 as a result of a postponement, since the majority of this group thought it was not appropriate to deal with it in the pre-transition period due to time constraints. My government was not in favor of postponing the discussion on jurisdiction, as we consider it was - and remains - a fundamental aspect of a new ICANN truly governed by the multistakeholder community without any pre-conditions, but in respect to the viewpoint of the other colleagues, we agreed to move it to WS2.
Now that time has come to properly deal with this topic, it is quite frustrating to notice that some participants insist on limiting and/or procrastinating this debate, including by using the absurd argument that any discussion around jurisdiction cannot put into question any aspect already decided in WS1, which is embedded in the California law. We cannot see good faith in that kind of circular argument. In our view, the discussion around the inclusion or exclusion of Q.4 shows quite clearly that some of those who have fiercely objected to any jurisdiction debate during WS1 are maintaining their objection in WS2 as well. On that particular topic (Q.4) we concur with the view that upon deciding on institutional arrangements we should not only consider already occurred cases but also take into account logically strong possibilities. The responses to the questionnaire should thus help us to deal with all possibilities associate to jurisdiction. In case any unsubstantiated opinion will be received, it should be summarily discarded. From the various jurisdiction calls it became quite evident that a substantial part of the subgroup - mainly non-US - has great interest in examining and debating ways through which we can make sure that any issue associated to jurisdiction be addressed in a way compatible with the company's international remit of coordinating Internet public identifiers. In that context, I would like to highlight my government´s understanding that although the proposed questionnaire under discussion may provide us with some relevant factual information, it does not in any way cover all aspects of interest. We would like to refer, for example, to the list of issues compiled by Kavouss Arasteh as per his 13 December 2016 e-mail. We would also refer to questions that have continuously been asked by Parminder, apparently without any satisfactory answer. Those issues and questions include, for example, dispute settlement related topics, which demonstrates, in our view, that jurisdiction cannot be seen purely from businesses´ viewpoint. As someone has stated, we also need to look at the relationship between ICANN and third parties and adequately consider non-contracted Parties that might be affected by ICANN´s acts and/or omissions. From the perspective of the Brazilian government, the topics raised by Kavouss, Parminder and others are issues of particular interest which, needless to say, will not be adequately addressed through the mere analysis of the answers provided to the questionnaire, whether it includes Q.4 or not. My government has expressed its interest in pursuing discussion on jurisdiction through those angles many times - both during the IANA transition process and well before that. Other governments have done the same, as well as a sound number of civil society organizations around the globe. The "NETmundial Multistakeholder Statement", while calling for the internationalization of ICANN, clearly expresses this as well. Let me emphasize, by the way, that the NETmundial Statement calls for ICANN´s internationalization and not for it to become an intergovernmental organization. Those are two different notions that should not be confounded.
If this subgroup fails to deal with the multidimensional issues associated to jurisdiction properly , it may be applauded by some segments , but it will not contribute to putting in place a framework that will ensure the shared goal of making ICANN a legitimate entity in the eyes of all stakeholders, including governments. To achieve that, no issues should be discarded as "non important" or "not yet verified". While preserving the essence of what was achieved in WS1, innovative thinking, including on the part of persons with legal expertise, will be needed. Is it worth to wipe an important debate under the carpet just to comfort one or a few stakeholder groups while discontenting others? What kind of legitimacy is such a biased and limited exercise likely to have within the international community? .
It is time the subgroup - including the coChairs - make a honest assessment of the various viewpoints related to ICANN's jurisdiction and conduct the debate as openly as possible in order to address all the concerns and interests behind it.
Kind regards,
Sec. Pedro Ivo Ferraz da Silva Division of Information Society Ministry of Foreign Affairs - Brazil T: +55 61 2030-6609 <+55%2061%202030-6609>
________________________________ De: accountability-cross-community-bounces@icann.org [accountability- cross-community-bounces@icann.org] em nome de parminder [parminder@itforchange.net] Enviado: quinta-feira, 22 de dezembro de 2016 14:01 Para: Kavouss Arasteh; Greg Shatan Cc: accountability-cross-community@icann.org Assunto: Re: [CCWG-ACCT] Jurisdiction Proposed Questions and Poll Results
Dear Kavouss
You are right, we should first deal with the issue of the questionnaire.
I agree, as do many others, that there is no justification to remove the proposed Q 4 from the questionnaire. The question must go out along with others.
A question seeking information is only a question seeking information. People may chose to not respond to it, or give different responses, likely in opposition to one another. That is all very fine, and quite expected. But such forceful arguments to not ask for certain kinds of information is very disturbing, even alarming. (I have issues with how the other questions are framed, but I am fine to let them go out because some people want them to be posed.)
Ordinarily, if a good number of participants here wanted a question, that should be enough to include it. Here, a majority of those who voted on the issue of this particular question wanted the question included. That should have conclusively stopped the debate. But no, not so. There is persistent effort to censor this question. And this in a process that is advertised as open, transparent, collaborative, and what not. There is something very basically wrong here.
parminder
On Thursday 22 December 2016 07:20 PM, Kavouss Arasteh wrote: Dear John. Dear Parminder, It is difficult for me to conclude on any solution between the lines of your discussion. Could any of you kindly give a resume of the exchanged views. We need to look for some compromise solution knowing that some hard liners like x and y insist to impose their objections to send Q4.I continue to object to all questions until all 4 are agreed Nothing is agreed untill everything is agreed this is a Global multistakholder Group discussion and NOT North American Sub-Region multistakholder Group dominated by certain individuals Regards Kavouss
2016-12-22 13:06 GMT+01:00 parminder <parminder@itforchange.net<mailto:parminder@itforchange.net>>:
On Tuesday 20 December 2016 08:37 PM, John Laprise wrote: "To turn ones face away and say, nothing can be done here, to evolve our democratic international systems, is to vote for a status quo which serves some, but not others."
Rather, it is an acknowledgement of reality.
Apologies for appearing to be flippant, but isnt that what every status quo-ist says. Rule of law is neither globally strong nor evenly distributed. I can imagine a world in which the way forward you describe is plausible but, regrettably, it is not the one we live in. Other systems need strengthening and in some cases even existence before the way forward is open. It's not a vote for the status quo but a recognition of path dependency.
I am not asking for a violent deviation from the path - both options that I propose, a new international law and immunity under existing US Act carries forward the path-dependency, and completely safeguard the existing structures and processes of ICANN, the system I think you allude to as requiring strengthening. What I propose in fact further strengthens it, to a considerable extent. The ICANN system's current jurisdictional oversight by a single country is its biggest weak point in terms of international legitimacy. ( A point, unfortunately USians here seem not able to see and sympathise with.) Imagine an ICANN with immunity from US jurisdiction; how much legitimacy, and thus strength, it adds to the system.
Thanks for the back rounder Parminder. It was, along with some parallel research, quite helpful.
Thanks John, you are welcome.
The problem remains however that there is no analogous organization to ICANN merely in terms of its contractual authority.
Firstly, if we are hoping that a fully-developed, well-rounded solution, with everything fully covered by enough exact precedents, to this complex but very genuine problem, will simply one day drop in our laps, I assure you that this is not going to happen. We have to work for it, join the dots, take risks, make innovations, and so on. The point is, who is losing and gaining what from the present dispensation, and who is willing to do what is required to do.
Next, I see that organisations like International Fertilizer and Development Centre, which we cited as an example of an NPO given jurisdictional immunity, also does run many projects worldwide. Any such project would require use of a legal status, entering contracts, and so on.... We just need to look into it. But if we close our eyes, and simply refuse to explore options, we are not going to get anywhere. I am not saying this example will be an exact fit for our requirement, but we need to see what is possible, and innovate and evolve over it.
I'd also add that many of the benefits of the act are at the discretion of the US Secretary of State and can be revoked.
Yes, which is why immunity under US Act is less sustainable option than international law based immunity. But still better than the present condition. In the recent civil society statement on jurisdiction<http://www.itforchange.net/sites/default/files/ Jurisdiction%20of %20ICANN.pdf>, we also suggested a method whereby any such withdrawal of immunity can be made difficult/ ineffectual (see option 3 in the end).
The proposed jurisdictional immunity would also require all governments to sign off on such status, given ICANN's reach.
I dont see why so. Only US gov needs to agree.
I know that there is a significant literature on international compacts and law. Given the often decades long time frames for the passage and acceptance of such law, the Internet as we know it is unlikely to exist by the time it comes into force.
These are weak excuses. It can be done in 6 months. But in any case, if it satisfies those who want to move towards international jurisdiction, what do you lose in allowing to set in motion the process, esp if you think it would take forever to do anything. Let those who want have it. In the interim, status quo would stay.
To your question about why we do not discuss jurisdictional immunity under US law: it is because the domestic political reality of the situation makes such an eventuality so remote as to be hypothetical.
The same domestic situation makes the continuation of ICANN under US jurisdiction even less tenable.
This brings me to a very important point: the job of CCWG, working on behalf of the global community, is not to second guess what US gov will accept or not (unfortunately, that is what it has mostly done). If this was its real task, we as well may let US gov do what it may, instead of providing them the cover of legitimacy of the supposed will of the so called 'global community' which is what this process does. Our job is to recommend what we think in is best global interest, and is ordinarily plausible to do. This is what our job is, and we must just do that. Let US gov do its job - accept our recs or not. That burden is upon them - let s not take up their burden. This aspect of the work of the "community" groups involved in the transition process has always greatly bothered me. We must have clarity about - on whose behalf are we working (i think, for the global community, but you can clarify) and what our recs must be based on (I think, on our understanding of what is best for the global community, and not what we think US gov likes and would agree to, and what not, but again you can clarify)
The described quest is admirable but IMO is a non-starter. Conditions do not exist presently to make it a possible.
We are part of once in decades constitutional process about ICANN's structures. If it is not now, it is never.
parminder
Best regards,
John Laprise, Ph.D. Consulting Scholar
<http://www.linkedin.com/in/jplaprise/><http://www.linkedin. com/in/jplapri se/>http://www.linkedin.com/in/jplaprise/
From: parminder [<mailto:parminder@itforchange.net>mailto:parminder@itforchange.net] Sent: Tuesday, December 20, 2016 2:57 AM To: John Laprise <mailto:jlaprise@gmail.com> <jlaprise@gmail.com><mailto:jlaprise@gmail.com>; accountability-cross- community@icann.org<mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Jurisdiction Proposed Questions and Poll Results
On Monday 19 December 2016 08:14 PM, John Laprise wrote:
Possibilities of jurisdictional immunity? Could you please provide examples of organizations that enjoy such.
John The most well known case of jurisdictional immunity is of course for organisations incorporated under international law. Unlike what has been argued here variously, although international law has to be made by governments through treaties etc that says nothing about the actual governance structure of the concerned organisation, ICANN in this case. International law can, to take an extreme case, hand over complete governance of a body created/ incorporated under international law to you and me... Nothing circumscribes how international law is written as long as all countries agree to it. It is entirely possible, and I think extremely plausible, that they would agree to write in such law the exact governance structure of ICANN as it is at present. Right now too, ICANN exists by and under the strength of its law of incorporation which is US law. In the scenario I present, it would just be international law instead of US law. Yes, there are matters to worked out in this regard, but if democracy and self-determination of all people, equally, is of any importance at all, we can go through the process, including doing the needed innovations as needed. The current international system was not handed over to us by God, it was evolved by people like us, who responded appropriately to newer and newer global challenges, as the one that faces us now. To turn ones face away and say, nothing can be done here, to evolve our democratic international systems, is to vote for a status quo which serves some, but not others. And these are the others that are protesting here, and seeking appropriate change. It is a political issue, lets not treat it as a technical issue, of what is argued to be difficult or too "troublesome" to pursue.
Next, even without going the international law route, as has been said many times earlier here, US law allows even non profits to be given jurisdictional immunity. The concerned law is the United States International Organisations Immunities Act<https://archive.icann.org/en/psc/annex9.pdf> . And an example of a US non-profit being given jurisdiction immunity under it is International Fertilizer and Development Center. This has been discussed in a report commissioned by ICANN itself which can be found at https://archive.icann.org/en/psc/corell-24aug06.html .
I have been unable to understand why can we not agree to even jurisdictional immunity under existing US law, which keeps ICANN in the US, preserves its existing structures, and does go considerable way to address the concerns about those who are concerned about application of US public law on ICANN, and what it may mean for its global governance work.
The argument is advanced that this may affect the operation of the newly instituted community accountability mechanism. I dont think this is not true. This mechanism is a matter of internal ICANN governance system, which is a 'private' arrangement with choice of law available to it. It simply has to be put in ICANN bylaws that ICANN governance processes will be subject to adjudication by Californian courts as present. That should do. Of course the mentioned International Fertilizer and Development Centre also must be existing with some governance systems, that admit of external adjudication, even as it enjoys the benefit of jurisdictional immunity from US public laws. Such immunity always only pertains to the policy and such international core activities of the concerned organisation, and associated matters. It would not, for instance, extend to actual crime being committed by its personnel on its premises. All such matters of various distinctions get taken care of when we enter the actual processes of such immunities etc. Right now, the issue is only to decide to go down the route, or not.
parminder
Best regards,
John Laprise, Ph.D. Consulting Scholar
http://www.linkedin.com/in/jplaprise/
From: accountability-cross-community- bounces@icann.org<mailto:accountability-cross-community- bounces@icann.org> [mailto:accountability-cross-community- bounces@icann.org] On Behalf Of parminder Sent: Monday, December 19, 2016 7:10 AM To: accountability-cross-community@icann.org<mailto:accountabili ty-cross- community@icann.org> Subject: Re: [CCWG-ACCT] Jurisdiction Proposed Questions and Poll Results
On Saturday 17 December 2016 12:40 AM, Mueller, Milton L wrote:
SNIP
John Laprise's wording was much, much better:
"What are the advantages or disadvantages, if any, relating to changing ICANN's jurisdiction*, particularly with regard to the actual operation of ICANN's policies and accountability mechanisms?"
This formulation does not include possibilities of jurisdictional immunity.
Something like
"What are the advantages or disadvantages, if any, relating to changing ICANN's jurisdiction*, or providing possible jurisdictional immunity, particularly with regard to the actual operation of ICANN's policies and accountability mechanisms?"
would be better.
parminder
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I support alternative 1 of question 4. Rather than issues, I believe we should be focus on on demonstrable problems. Issues can just consists of debating points absent real world evidence of something broken or substantially sub-optimal requiring a remedy. Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/cell "Luck is the residue of design" -- Branch Rickey ________________________________ From: ws2-jurisdiction-bounces@icann.org [ws2-jurisdiction-bounces@icann.org] on behalf of Greg Shatan [gregshatanipc@gmail.com] Sent: Tuesday, December 27, 2016 3:28 PM To: ws2-jurisdiction@icann.org Subject: [Ws2-jurisdiction] Focus, Working Method and Revisions to Proposed Questions: RESPONSE REQUESTED [was: Jurisdiction Proposed Questions and Poll Results] All, I'm sending this to the Jurisdiction subgroup list, since this was initially send to a discussion thread on jurisdiction taking place on the CCWG list. Please respond here, rather than there. Thank you. Greg The following responses were received on the Accountability list: Parminder: Greg/ All I think the Alternative 1, which you take as likely candidate for broader support, is fine. I list this formulation below: What are the advantages or disadvantages, if any, relating to ICANN's jurisdiction*, particularly with regard to the actual operation of ICANN’s policies and accountability mechanisms? Please support your response with appropriate examples, references to specific laws, case studies, other studies, and analysis. In particular, please indicate if there are current or past instances that highlight such advantages or problems. (* For these questions, “ICANN’s jurisdiction” refers to (a) ICANN being subject to U.S. and California law as a result of its incorporation and location in California, (b) ICANN being subject to the laws of any other country as a result of its location within or contacts with that country, or (c) any “choice of law” or venue provisions in agreements with ICANN.) ENDS Lets move on with it. We are spending too much time on framing a question. Kavouss Arasteh: Grec, Tks again, As I said I believe ,it is counter productive to discuss many alternative, I could agree with formulation of Parminder Regards Kavouss Sam Lanfranco: Greg, Thank you for presenting alternatives for reaching agreement on a Roadmap for Moving Forward to identify operational issues embedded in the overall “jurisdiction” issue. It is important to recognize that what is being proposed is the choice of roadmap for moving forward. Where this takes us will flow from the assembly of evidence, the application of analysis, and the resulting array of possible options for addressing jurisdiction base operational issues. Sam Lanfranco ---------- Forwarded message ---------- From: Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> Date: Tue, Dec 27, 2016 at 2:56 AM Subject: Re: [CCWG-ACCT] RES: Jurisdiction Proposed Questions and Poll Results To: "accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>" <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> All: Two quick but important points: 1. We have strayed from the basic topic in front of us, which is to decide on the formulation of the questions to be sent out. I have gone through the emails and meeting notes and pulled the alternative formulations and revisions in to a single document, attached to this email. With regard to question 4, I believe that the best way to move forward is to see if one of the alternatives gets stronger support within the CCWG. If we can get to a point where there is broad support for the question without significant opposition that may resolve issues relating to whether and when this question will be sent out. 2. Our overall agreed-upon working method is to first identify, discuss and arrive at a list of issues that raise concerns, and then move on to identifying, discussing and arriving at a list of potential remedies for each issue on our list. We are still working on issues. For a remedy to be up for discussion when we move to discussing remedies, that remedy needs to provide a solution to an issue. We can't discuss a potential remedy without having an issue it is intended to solve. If there is a potential "remedy" but it does not solve any of our issues, we won't discuss it. We've already put aside one potential "remedy" until we see whether we identify any issues it would solve -- the "remedy" of changing ICANN's jurisdiction of incorporation or headquarters location. "Immunity" is another potential remedy that we need to deal with the same way. Skipping forward to discussions of remedies is only slowing down our discussion of issues. I strongly suggest we refocus on issues, so that we can get to the discussion of remedies. Once we've agreed on a list of issues, a discussion of remedies will be more productive. Our working method of dealing with issues first and then remedies may also help us find agreement on a way to deal with question 4. Questions 1-3 clearly deal with issues. Perhaps a version of question 4 that is limited to asking for issues will get broader support ("Alternative 1" on the attachment may fit this description.) Greg On Mon, Dec 26, 2016 at 1:41 PM, Seun Ojedeji <seun.ojedeji@gmail.com<mailto:seun.ojedeji@gmail.com>> wrote: Hello, I also don't see the logic in sending two questionnaires. There may be some logic in treating the responses to questions 1 to 3 separate from question 4, but we are not yet at that stage. It will be better the question is not added at all than to send it as a separate questionnaire. Overall I am indifferent about adding or not adding but since there is seemingly a lot of support to add, I don't see the significant harm it will cause by doing that[1]. Based on the response of the Co-Chairs to my question, I would suggest that it's better to let all the 4 questions be presented and let's see what issues emerge from their responses. Then we can start to do a few round trips to legal and hopefully remind ourselves the possible consequences of addressing certain issues in a particular way. Some of which has already been echoed during WS1. Regards 1. Nevermind that it could generate some political news/headlines but am sure this group is already used to that by now ;-) Sent from my LG G4 Kindly excuse brevity and typos On 26 Dec 2016 19:19, "avri doria" <avri@acm.org<mailto:avri@acm.org>> wrote: Hi, Where we differ is on the idea of separating the questions into 2 questionnaires. I think it is going to be hard enough to get people to pay attention to one questionnaire, asking them to do two is daunting. A fourth question will not test their patience in the same way another questionnaire would. So with Kavouss I say:
Allow all 4 questions go out and then wait what will happens .
avri On 26-Dec-16 11:42, Mueller, Milton L wrote:
-----Original Message----- At the same time, let us all try to return to a constructive and step-by-step approach, building on the progress made so far, in order to make progress on our mandate, established by the whole multistakeholder community back in Marrakech. I agree, and I think both Pedro's and Phil's position are based on some confusion of issues. It we calm down a bit and look at this more carefully we can make progress.
Pedro may be confusing the inclusion or exclusion of Question 4 in our initial request with the question of whether we explore issues in US jurisdiction at all. But excluding Question 4 from our initial request for information is not the same as a refusal to explore the questions it raises. I have proposed _separating_ Q4 from the other 3 questions, not eliminating it entirely. I proposed this not because I want to avoid the questions Q4 poses, but because I want those questions to be developed better and I want to avoid conflating it with the narrower questions about dispute resolution that Q's 1-3 were designed to address. It is a mistake to put those two things together. The information we gather from Q's 1-3 will suffer from their attachment to the potentially more controversial issues raised by Q4. Let me also add that the divisive insistence that this is a matter of US citizens vs non-US citizens needs to be dropped. Avri and myself, e.g., are both US citizens/residents and have serious concerns about possible intrusions of US foreign policy and other nationalistic and governmental concerns into ICANN matters. At the same time we are both staunch supporters of a nongovernmental model in this space and have no inherent objection to California law as ICANN's basis.
Phil Corwin on the other hand is confusing the issue of whether ICANN's corporate HQ is in California with the question of whether ICANN will be an intergovernmental entity. These questions have very little to do with each other. It is of course true that there are still a few people out there who would like for ICANN to become intergovernmental, but they are a tiny minority and the weight of history is totally against them. Put more bluntly, it ain't gonna happen. Supporters of the MS model and opponents of intergovernmentalism have legitimate reasons to investigate the impact of US jurisdiction, because the US is a global power with very specific foreign policy and military interests. US jurisdiction thus may have the potential to create opportunities for one government - the US - to have an inappropriate level of influence over ICANN's transnational, nonstate actor based governance processes. One can consider those issues without implying that ICANN's corporate HQ needs to move.
So let's stop making the status of Q4 a proxy for a long-settled war over whether ICANN is private or governmental, and let's stop pretending that those who want to separate the issues raised by Q4 from the narrower more focused issues in Q1-3 are trying to avoid legitimate issues.
As for creating a separate CCWG, are you kidding? This is the CCWG subgroup created specifically for jurisdictional issues and we don't make difficult issues easier to resolve by creating additional structures.
Dr. Milton L. Mueller Professor, School of Public Policy Georgia Institute of Technology
In this vein, and consistent with our conversation in Hyderabad, let us continue with the line directed to requesting input from the wider community.
The four questions developed so far will allow us to gather much needed input on facts, examples and well-founded opinions on the influence of ICANNs jurisdiction, taking into account its multiple layers, on its operations and accountability.
If we all are constructive and accept esch others' views as worthy of further discussion and study, we will be able to get this important step further.
Hence, let us please stay on the right track and finalize formulations of all four questions, and keep up the good spirit of cooperation.
with my best wishes for you all during the festivities
kind regards
Jorge
________________________________
Von: Pedro Ivo Ferraz da Silva <pedro.ivo@itamaraty.gov.br<mailto:pedro.ivo@itamaraty.gov.br>> Datum: 24. Dezember 2016 um 15:53:55 MEZ An: Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>>, parminder <parminder@itforchange.net<mailto:parminder@itforchange.net>>, Kavouss Arasteh <kavouss.arasteh@gmail.com<mailto:kavouss.arasteh@gmail.com>> Cc: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> <accountability-cross- community@icann.org<mailto:community@icann.org>> Betreff: [CCWG-ACCT] RES: Jurisdiction Proposed Questions and Poll Results
Dear CCWG-colleagues,
After reading some comments in this email thread, I must admit to be really disappointed.
Some of our colleagues in the CCWG seem to have forgotten - perhaps on purpose - that the topic of jurisdiction was allocated to WS2 as a result of a postponement, since the majority of this group thought it was not appropriate to deal with it in the pre-transition period due to time constraints. My government was not in favor of postponing the discussion on jurisdiction, as we consider it was - and remains - a fundamental aspect of a new ICANN truly governed by the multistakeholder community without any pre-conditions, but in respect to the viewpoint of the other colleagues, we agreed to move it to WS2.
Now that time has come to properly deal with this topic, it is quite frustrating to notice that some participants insist on limiting and/or procrastinating this debate, including by using the absurd argument that any discussion around jurisdiction cannot put into question any aspect already decided in WS1, which is embedded in the California law. We cannot see good faith in that kind of circular argument. In our view, the discussion around the inclusion or exclusion of Q.4 shows quite clearly that some of those who have fiercely objected to any jurisdiction debate during WS1 are maintaining their objection in WS2 as well. On that particular topic (Q.4) we concur with the view that upon deciding on institutional arrangements we should not only consider already occurred cases but also take into account logically strong possibilities. The responses to the questionnaire should thus help us to deal with all possibilities associate to jurisdiction. In case any unsubstantiated opinion will be received, it should be summarily discarded. From the various jurisdiction calls it became quite evident that a substantial part of the subgroup - mainly non-US - has great interest in examining and debating ways through which we can make sure that any issue associated to jurisdiction be addressed in a way compatible with the company's international remit of coordinating Internet public identifiers. In that context, I would like to highlight my government´s understanding that although the proposed questionnaire under discussion may provide us with some relevant factual information, it does not in any way cover all aspects of interest. We would like to refer, for example, to the list of issues compiled by Kavouss Arasteh as per his 13 December 2016 e-mail. We would also refer to questions that have continuously been asked by Parminder, apparently without any satisfactory answer. Those issues and questions include, for example, dispute settlement related topics, which demonstrates, in our view, that jurisdiction cannot be seen purely from businesses´ viewpoint. As someone has stated, we also need to look at the relationship between ICANN and third parties and adequately consider non-contracted Parties that might be affected by ICANN´s acts and/or omissions. From the perspective of the Brazilian government, the topics raised by Kavouss, Parminder and others are issues of particular interest which, needless to say, will not be adequately addressed through the mere analysis of the answers provided to the questionnaire, whether it includes Q.4 or not. My government has expressed its interest in pursuing discussion on jurisdiction through those angles many times - both during the IANA transition process and well before that. Other governments have done the same, as well as a sound number of civil society organizations around the globe. The "NETmundial Multistakeholder Statement", while calling for the internationalization of ICANN, clearly expresses this as well. Let me emphasize, by the way, that the NETmundial Statement calls for ICANN´s internationalization and not for it to become an intergovernmental organization. Those are two different notions that should not be confounded.
If this subgroup fails to deal with the multidimensional issues associated to jurisdiction properly , it may be applauded by some segments , but it will not contribute to putting in place a framework that will ensure the shared goal of making ICANN a legitimate entity in the eyes of all stakeholders, including governments. To achieve that, no issues should be discarded as "non important" or "not yet verified". While preserving the essence of what was achieved in WS1, innovative thinking, including on the part of persons with legal expertise, will be needed. Is it worth to wipe an important debate under the carpet just to comfort one or a few stakeholder groups while discontenting others? What kind of legitimacy is such a biased and limited exercise likely to have within the international community? .
It is time the subgroup - including the coChairs - make a honest assessment of the various viewpoints related to ICANN's jurisdiction and conduct the debate as openly as possible in order to address all the concerns and interests behind it.
Kind regards,
Sec. Pedro Ivo Ferraz da Silva Division of Information Society Ministry of Foreign Affairs - Brazil T: +55 61 2030-6609<tel:+55%2061%202030-6609>
________________________________ De: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [accountability- cross-community-bounces@icann.org<mailto:cross-community-bounces@icann.org>] em nome de parminder [parminder@itforchange.net<mailto:parminder@itforchange.net>] Enviado: quinta-feira, 22 de dezembro de 2016 14:01 Para: Kavouss Arasteh; Greg Shatan Cc: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Assunto: Re: [CCWG-ACCT] Jurisdiction Proposed Questions and Poll Results
Dear Kavouss
You are right, we should first deal with the issue of the questionnaire.
I agree, as do many others, that there is no justification to remove the proposed Q 4 from the questionnaire. The question must go out along with others.
A question seeking information is only a question seeking information. People may chose to not respond to it, or give different responses, likely in opposition to one another. That is all very fine, and quite expected. But such forceful arguments to not ask for certain kinds of information is very disturbing, even alarming. (I have issues with how the other questions are framed, but I am fine to let them go out because some people want them to be posed.)
Ordinarily, if a good number of participants here wanted a question, that should be enough to include it. Here, a majority of those who voted on the issue of this particular question wanted the question included. That should have conclusively stopped the debate. But no, not so. There is persistent effort to censor this question. And this in a process that is advertised as open, transparent, collaborative, and what not. There is something very basically wrong here.
parminder
On Thursday 22 December 2016 07:20 PM, Kavouss Arasteh wrote: Dear John. Dear Parminder, It is difficult for me to conclude on any solution between the lines of your discussion. Could any of you kindly give a resume of the exchanged views. We need to look for some compromise solution knowing that some hard liners like x and y insist to impose their objections to send Q4.I continue to object to all questions until all 4 are agreed Nothing is agreed untill everything is agreed this is a Global multistakholder Group discussion and NOT North American Sub-Region multistakholder Group dominated by certain individuals Regards Kavouss
2016-12-22 13:06 GMT+01:00 parminder <parminder@itforchange.net<mailto:parminder@itforchange.net><mailto:parminder@itforchange.net<mailto:parminder@itforchange.net>>>:
On Tuesday 20 December 2016 08:37 PM, John Laprise wrote: "To turn ones face away and say, nothing can be done here, to evolve our democratic international systems, is to vote for a status quo which serves some, but not others."
Rather, it is an acknowledgement of reality.
Apologies for appearing to be flippant, but isnt that what every status quo-ist says. Rule of law is neither globally strong nor evenly distributed. I can imagine a world in which the way forward you describe is plausible but, regrettably, it is not the one we live in. Other systems need strengthening and in some cases even existence before the way forward is open. It's not a vote for the status quo but a recognition of path dependency.
I am not asking for a violent deviation from the path - both options that I propose, a new international law and immunity under existing US Act carries forward the path-dependency, and completely safeguard the existing structures and processes of ICANN, the system I think you allude to as requiring strengthening. What I propose in fact further strengthens it, to a considerable extent. The ICANN system's current jurisdictional oversight by a single country is its biggest weak point in terms of international legitimacy. ( A point, unfortunately USians here seem not able to see and sympathise with.) Imagine an ICANN with immunity from US jurisdiction; how much legitimacy, and thus strength, it adds to the system.
Thanks for the back rounder Parminder. It was, along with some parallel research, quite helpful.
Thanks John, you are welcome.
The problem remains however that there is no analogous organization to ICANN merely in terms of its contractual authority.
Firstly, if we are hoping that a fully-developed, well-rounded solution, with everything fully covered by enough exact precedents, to this complex but very genuine problem, will simply one day drop in our laps, I assure you that this is not going to happen. We have to work for it, join the dots, take risks, make innovations, and so on. The point is, who is losing and gaining what from the present dispensation, and who is willing to do what is required to do.
Next, I see that organisations like International Fertilizer and Development Centre, which we cited as an example of an NPO given jurisdictional immunity, also does run many projects worldwide. Any such project would require use of a legal status, entering contracts, and so on.... We just need to look into it. But if we close our eyes, and simply refuse to explore options, we are not going to get anywhere. I am not saying this example will be an exact fit for our requirement, but we need to see what is possible, and innovate and evolve over it.
I'd also add that many of the benefits of the act are at the discretion of the US Secretary of State and can be revoked.
Yes, which is why immunity under US Act is less sustainable option than international law based immunity. But still better than the present condition. In the recent civil society statement on jurisdiction<http://www.itforchange.net/sites/default/files/Jurisdiction%20of %20ICANN.pdf>, we also suggested a method whereby any such withdrawal of immunity can be made difficult/ ineffectual (see option 3 in the end).
The proposed jurisdictional immunity would also require all governments to sign off on such status, given ICANN's reach.
I dont see why so. Only US gov needs to agree.
I know that there is a significant literature on international compacts and law. Given the often decades long time frames for the passage and acceptance of such law, the Internet as we know it is unlikely to exist by the time it comes into force.
These are weak excuses. It can be done in 6 months. But in any case, if it satisfies those who want to move towards international jurisdiction, what do you lose in allowing to set in motion the process, esp if you think it would take forever to do anything. Let those who want have it. In the interim, status quo would stay.
To your question about why we do not discuss jurisdictional immunity under US law: it is because the domestic political reality of the situation makes such an eventuality so remote as to be hypothetical.
The same domestic situation makes the continuation of ICANN under US jurisdiction even less tenable.
This brings me to a very important point: the job of CCWG, working on behalf of the global community, is not to second guess what US gov will accept or not (unfortunately, that is what it has mostly done). If this was its real task, we as well may let US gov do what it may, instead of providing them the cover of legitimacy of the supposed will of the so called 'global community' which is what this process does. Our job is to recommend what we think in is best global interest, and is ordinarily plausible to do. This is what our job is, and we must just do that. Let US gov do its job - accept our recs or not. That burden is upon them - let s not take up their burden. This aspect of the work of the "community" groups involved in the transition process has always greatly bothered me. We must have clarity about - on whose behalf are we working (i think, for the global community, but you can clarify) and what our recs must be based on (I think, on our understanding of what is best for the global community, and not what we think US gov likes and would agree to, and what not, but again you can clarify)
The described quest is admirable but IMO is a non-starter. Conditions do not exist presently to make it a possible.
We are part of once in decades constitutional process about ICANN's structures. If it is not now, it is never.
parminder
Best regards,
John Laprise, Ph.D. Consulting Scholar
<http://www.linkedin.com/in/jplaprise/><http://www.linkedin.com/in/jplapri se/>http://www.linkedin.com/in/jplaprise/
From: parminder [<mailto:parminder@itforchange.net<mailto:parminder@itforchange.net>>mailto:parminder@itforchange.net<mailto:parminder@itforchange.net>] Sent: Tuesday, December 20, 2016 2:57 AM To: John Laprise <mailto:jlaprise@gmail.com<mailto:jlaprise@gmail.com>> <jlaprise@gmail.com<mailto:jlaprise@gmail.com>><mailto:jlaprise@gmail.com<mailto:jlaprise@gmail.com>>; accountability-cross- community@icann.org<mailto:community@icann.org><mailto:accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] Jurisdiction Proposed Questions and Poll Results
On Monday 19 December 2016 08:14 PM, John Laprise wrote:
Possibilities of jurisdictional immunity? Could you please provide examples of organizations that enjoy such.
John The most well known case of jurisdictional immunity is of course for organisations incorporated under international law. Unlike what has been argued here variously, although international law has to be made by governments through treaties etc that says nothing about the actual governance structure of the concerned organisation, ICANN in this case. International law can, to take an extreme case, hand over complete governance of a body created/ incorporated under international law to you and me... Nothing circumscribes how international law is written as long as all countries agree to it. It is entirely possible, and I think extremely plausible, that they would agree to write in such law the exact governance structure of ICANN as it is at present. Right now too, ICANN exists by and under the strength of its law of incorporation which is US law. In the scenario I present, it would just be international law instead of US law. Yes, there are matters to worked out in this regard, but if democracy and self-determination of all people, equally, is of any importance at all, we can go through the process, including doing the needed innovations as needed. The current international system was not handed over to us by God, it was evolved by people like us, who responded appropriately to newer and newer global challenges, as the one that faces us now. To turn ones face away and say, nothing can be done here, to evolve our democratic international systems, is to vote for a status quo which serves some, but not others. And these are the others that are protesting here, and seeking appropriate change. It is a political issue, lets not treat it as a technical issue, of what is argued to be difficult or too "troublesome" to pursue.
Next, even without going the international law route, as has been said many times earlier here, US law allows even non profits to be given jurisdictional immunity. The concerned law is the United States International Organisations Immunities Act<https://archive.icann.org/en/psc/annex9.pdf> . And an example of a US non-profit being given jurisdiction immunity under it is International Fertilizer and Development Center. This has been discussed in a report commissioned by ICANN itself which can be found at https://archive.icann.org/en/psc/corell-24aug06.html .
I have been unable to understand why can we not agree to even jurisdictional immunity under existing US law, which keeps ICANN in the US, preserves its existing structures, and does go considerable way to address the concerns about those who are concerned about application of US public law on ICANN, and what it may mean for its global governance work.
The argument is advanced that this may affect the operation of the newly instituted community accountability mechanism. I dont think this is not true. This mechanism is a matter of internal ICANN governance system, which is a 'private' arrangement with choice of law available to it. It simply has to be put in ICANN bylaws that ICANN governance processes will be subject to adjudication by Californian courts as present. That should do. Of course the mentioned International Fertilizer and Development Centre also must be existing with some governance systems, that admit of external adjudication, even as it enjoys the benefit of jurisdictional immunity from US public laws. Such immunity always only pertains to the policy and such international core activities of the concerned organisation, and associated matters. It would not, for instance, extend to actual crime being committed by its personnel on its premises. All such matters of various distinctions get taken care of when we enter the actual processes of such immunities etc. Right now, the issue is only to decide to go down the route, or not.
parminder
Best regards,
John Laprise, Ph.D. Consulting Scholar
http://www.linkedin.com/in/jplaprise/
From: accountability-cross-community- bounces@icann.org<mailto:bounces@icann.org><mailto:accountability-cross-community-<mailto:accountability-cross-community-> bounces@icann.org<mailto:bounces@icann.org>> [mailto:accountability-cross-community-<mailto:accountability-cross-community-> bounces@icann.org<mailto:bounces@icann.org>] On Behalf Of parminder Sent: Monday, December 19, 2016 7:10 AM To: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org><mailto:accountability-cross-<mailto:accountability-cross-> community@icann.org<mailto:community@icann.org>> Subject: Re: [CCWG-ACCT] Jurisdiction Proposed Questions and Poll Results
On Saturday 17 December 2016 12:40 AM, Mueller, Milton L wrote:
SNIP
John Laprise's wording was much, much better:
"What are the advantages or disadvantages, if any, relating to changing ICANN's jurisdiction*, particularly with regard to the actual operation of ICANN's policies and accountability mechanisms?"
This formulation does not include possibilities of jurisdictional immunity.
Something like
"What are the advantages or disadvantages, if any, relating to changing ICANN's jurisdiction*, or providing possible jurisdictional immunity, particularly with regard to the actual operation of ICANN's policies and accountability mechanisms?"
would be better.
parminder
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I agree that problems is a better term. I was using "issues" in the lawyerly sense, which does mean a real, demonstrable problem, and not merely a hypothetical assertion. Greg On Tue, Dec 27, 2016 at 9:19 PM Phil Corwin <psc@vlaw-dc.com> wrote:
I support alternative 1 of question 4.
Rather than issues, I believe we should be focus on on demonstrable problems. Issues can just consists of debating points absent real world evidence of something broken or substantially sub-optimal requiring a remedy.
*Philip S. Corwin, Founding Principal*
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------------------------------
*From:* ws2-jurisdiction-bounces@icann.org [ ws2-jurisdiction-bounces@icann.org] on behalf of Greg Shatan [ gregshatanipc@gmail.com]
*Sent:* Tuesday, December 27, 2016 3:28 PM
*To:* ws2-jurisdiction@icann.org
*Subject:* [Ws2-jurisdiction] Focus, Working Method and Revisions to Proposed Questions: RESPONSE REQUESTED [was: Jurisdiction Proposed Questions and Poll Results]
All,
I'm sending this to the Jurisdiction subgroup list, since this was initially send to a discussion thread on jurisdiction taking place on the CCWG list.
*Please respond here, rather than there. Thank you.*
Greg
The following responses were received on the Accountability list:
*Parminder*:
Greg/ All
I think the Alternative 1, which you take as likely candidate for broader support, is fine. I list this formulation below:
What are the advantages or disadvantages, if any, relating to ICANN's jurisdiction*, particularly with regard to the actual operation of ICANN’s policies and accountability mechanisms? Please support your response with appropriate
examples, references to specific laws, case studies, other studies, and analysis. In particular, please indicate if there are current or past instances that highlight such advantages or problems.
(* For these questions, “ICANN’s jurisdiction” refers to (a) ICANN being subject to U.S. and California law as a result of its incorporation and location in California, (b) ICANN being subject to the laws of any other country as
a result of its location within or contacts with that country, or (c) any “choice of law” or venue provisions in agreements with ICANN.)
ENDS
Lets move on with it. We are spending too much time on framing a question.
*Kavouss Arasteh: *
Grec,
Tks again,
As I said I believe ,it is counter productive to discuss many alternative,
I could agree with formulation of Parminder
Regards
Kavouss
*Sam Lanfranco:*
Greg,
Thank you for presenting alternatives for reaching agreement on a
* Roadmap for Moving Forward to identify operational issues embedded in the overall “jurisdiction” issue*. It is important to recognize that what is being proposed is the choice of roadmap for moving forward. Where this takes us will flow
from the assembly of evidence, the application of analysis, and the resulting array of possible options for addressing jurisdiction base operational issues.
Sam Lanfranco
---------- Forwarded message ----------
From: *Greg Shatan* <gregshatanipc@gmail.com>
Date: Tue, Dec 27, 2016 at 2:56 AM
Subject: Re: [CCWG-ACCT] RES: Jurisdiction Proposed Questions and Poll Results
To: "accountability-cross-community@icann.org" < accountability-cross-community@icann.org>
All:
Two quick but important points:
1. We have strayed from the basic topic in front of us, which is to decide on the formulation of the questions to be sent out. I have gone through the emails and meeting notes and pulled the alternative formulations
and revisions in to a single document, attached to this email.
With regard to question 4, I believe that the best way to move forward is to see if one of the alternatives gets stronger support within the CCWG. If we can get to a point where there is broad support for the question
without significant opposition that may resolve issues relating to whether and when this question will be sent out.
2. Our overall agreed-upon working method is to first identify, discuss and arrive at a list of issues that raise concerns, and then move on to identifying, discussing and arriving at a list of potential remedies
for each issue on our list. We are still working on issues. For a remedy to be up for discussion when we move to discussing remedies, that remedy needs to provide a solution to an issue. We can't discuss a potential remedy without having an issue it is
intended to solve. If there is a potential "remedy" but it does not solve any of our issues, we won't discuss it.
We've already put aside one potential "remedy" until we see whether we identify any issues it would solve -- the "remedy" of changing ICANN's jurisdiction of incorporation or headquarters location. "Immunity" is
another potential remedy that we need to deal with the same way. Skipping forward to discussions of remedies is only slowing down our discussion of issues. I strongly suggest we refocus on issues, so that we can get to the discussion of remedies. Once we've
agreed on a list of issues, a discussion of remedies will be more productive.
Our working method of dealing with issues first and then remedies may also help us find agreement on a way to deal with question 4. Questions 1-3 clearly deal with issues. Perhaps a version of question 4 that is
limited to asking for issues will get broader support ("Alternative 1" on the attachment may fit this description.)
Greg
On Mon, Dec 26, 2016 at 1:41 PM, Seun Ojedeji
<seun.ojedeji@gmail.com> wrote:
Hello,
I also don't see the logic in sending two questionnaires. There may be some logic in treating the responses to questions 1 to 3 separate from question 4, but we are not yet at that stage. It will be better the question is not added at all than
to send it as a separate questionnaire.
Overall I am indifferent about adding or not adding but since there is seemingly a lot of support to add, I don't see the significant harm it will cause by doing that[1]. Based on the response of the Co-Chairs to my question, I would suggest that it's better
to let all the 4 questions be presented and let's see what issues emerge from their responses. Then we can start to do a few round trips to legal and hopefully remind ourselves the possible consequences of addressing certain issues in a particular way. Some
of which has already been echoed during WS1.
Regards
1. Nevermind that it could generate some political news/headlines but am sure this group is already used to that by now ;-)
Sent from my LG G4
Kindly excuse brevity and typos
On 26 Dec 2016 19:19, "avri doria" <avri@acm.org> wrote:
Hi,
Where we differ is on the idea of separating the questions into 2
questionnaires.
I think it is going to be hard enough to get people to pay attention to
one questionnaire, asking them to do two is daunting. A fourth question
will not test their patience in the same way another questionnaire would.
So with Kavouss I say:
Allow all 4 questions go out and then wait what will happens .
avri
On 26-Dec-16 11:42, Mueller, Milton L wrote:
-----Original Message-----
At the same time, let us all try to return to a constructive and step-by-step
approach, building on the progress made so far, in order to make progress on
our mandate, established by the whole multistakeholder community back in
Marrakech.
I agree, and I think both Pedro's and Phil's position are based on some confusion of issues. It we calm down a bit and look at this more carefully we can make progress.
Pedro may be confusing the inclusion or exclusion of Question 4 in our initial request with the question of whether we explore issues in US jurisdiction at all. But excluding Question 4 from our initial request for information is not the same as a refusal
to explore the questions it raises. I have proposed _separating_ Q4 from the other 3 questions, not eliminating it entirely. I proposed this not because I want to avoid the questions Q4 poses, but because I want those questions to be developed better and I
want to avoid conflating it with the narrower questions about dispute resolution that Q's 1-3 were designed to address. It is a mistake to put those two things together. The information we gather from Q's 1-3 will suffer from their attachment to the potentially
more controversial issues raised by Q4. Let me also add that the divisive insistence that this is a matter of US citizens vs non-US citizens needs to be dropped. Avri and myself, e.g., are both US citizens/residents and have serious concerns about possible
intrusions of US foreign policy and other nationalistic and governmental concerns into ICANN matters. At the same time we are both staunch supporters of a nongovernmental model in this space and have no inherent objection to California law as ICANN's basis.
Phil Corwin on the other hand is confusing the issue of whether ICANN's corporate HQ is in California with the question of whether ICANN will be an intergovernmental entity. These questions have very little to do with each other. It is of course true that
there are still a few people out there who would like for ICANN to become intergovernmental, but they are a tiny minority and the weight of history is totally against them. Put more bluntly, it ain't gonna happen. Supporters of the MS model and opponents of
intergovernmentalism have legitimate reasons to investigate the impact of US jurisdiction, because the US is a global power with very specific foreign policy and military interests. US jurisdiction thus may have the potential to create opportunities for one
government - the US - to have an inappropriate level of influence over ICANN's transnational, nonstate actor based governance processes. One can consider those issues without implying that ICANN's corporate HQ needs to move.
So let's stop making the status of Q4 a proxy for a long-settled war over whether ICANN is private or governmental, and let's stop pretending that those who want to separate the issues raised by Q4 from the narrower more focused issues in Q1-3 are trying
to avoid legitimate issues.
As for creating a separate CCWG, are you kidding? This is the CCWG subgroup created specifically for jurisdictional issues and we don't make difficult issues easier to resolve by creating additional structures.
Dr. Milton L. Mueller
Professor, School of Public Policy
Georgia Institute of Technology
In this vein, and consistent with our conversation in Hyderabad, let us
continue with the line directed to requesting input from the wider community.
The four questions developed so far will allow us to gather much needed input
on facts, examples and well-founded opinions on the influence of ICANNs
jurisdiction, taking into account its multiple layers, on its operations and
accountability.
If we all are constructive and accept esch others' views as worthy of further
discussion and study, we will be able to get this important step further.
Hence, let us please stay on the right track and finalize formulations of all four
questions, and keep up the good spirit of cooperation.
with my best wishes for you all during the festivities
kind regards
Jorge
________________________________
Von: Pedro Ivo Ferraz da Silva <pedro.ivo@itamaraty.gov.br>
Datum: 24. Dezember 2016 um 15:53:55 MEZ
An: Greg Shatan <gregshatanipc@gmail.com>, parminder
<parminder@itforchange.net>, Kavouss Arasteh
<kavouss.arasteh@gmail.com>
Cc:
accountability-cross-community@icann.org <accountability-cross-
community@icann.org>
Betreff: [CCWG-ACCT] RES: Jurisdiction Proposed Questions and Poll Results
Dear CCWG-colleagues,
After reading some comments in this email thread, I must admit to be really
disappointed.
Some of our colleagues in the CCWG seem to have forgotten - perhaps on
purpose - that the topic of jurisdiction was allocated to WS2 as a result of a
postponement, since the majority of this group thought it was not appropriate
to deal with it in the pre-transition period due to time constraints. My
government was not in favor of postponing the discussion on jurisdiction, as
we consider it was - and remains - a fundamental aspect of a new ICANN truly
governed by the multistakeholder community without any pre-conditions,
but in respect to the viewpoint of the other colleagues, we agreed to move it
to WS2.
Now that time has come to properly deal with this topic, it is quite frustrating
to notice that some participants insist on limiting and/or procrastinating this
debate, including by using the absurd argument that any discussion around
jurisdiction cannot put into question any aspect already decided in WS1,
which is embedded in the California law. We cannot see good faith in that kind
of circular argument.
In our view, the discussion around the inclusion or exclusion of Q.4 shows
quite clearly that some of those who have fiercely objected to any jurisdiction
debate during WS1 are maintaining their objection in WS2 as well. On that
particular topic (Q.4) we concur with the view that upon deciding on
institutional arrangements we should not only consider already occurred
cases but also take into account logically strong possibilities. The responses to
the questionnaire should thus help us to deal with all possibilities associate to
jurisdiction. In case any unsubstantiated opinion will be received, it should be
summarily discarded.
From the various jurisdiction calls it became quite evident that a substantial
part of the subgroup - mainly non-US - has great interest in examining and
debating ways through which we can make sure that any issue associated to
jurisdiction be addressed in a way compatible with the company's
international remit of coordinating Internet public identifiers. In that context, I
would like to highlight my government´s understanding that although the
proposed questionnaire under discussion may provide us with some relevant
factual information, it does not in any way cover all aspects of interest. We
would like to refer, for example, to the list of issues compiled by Kavouss
Arasteh as per his 13 December 2016 e-mail. We would also refer to
questions that have continuously been asked by Parminder, apparently
without any satisfactory answer. Those issues and questions include, for
example, dispute settlement related topics, which demonstrates, in our view,
that jurisdiction cannot be seen purely from businesses´ viewpoint. As
someone has stated, we also need to look at the relationship between ICANN
and third parties and adequately consider non-contracted Parties that might
be affected by ICANN´s acts and/or omissions.
From the perspective of the Brazilian government, the topics raised by
Kavouss, Parminder and others are issues of particular interest which,
needless to say, will not be adequately addressed through the mere analysis
of the answers provided to the questionnaire, whether it includes Q.4 or not.
My government has expressed its interest in pursuing discussion on
jurisdiction through those angles many times - both during the IANA
transition process and well before that. Other governments have done the
same, as well as a sound number of civil society organizations around the
globe. The "NETmundial Multistakeholder Statement", while calling for the
internationalization of ICANN, clearly expresses this as well. Let me
emphasize, by the way, that the NETmundial Statement calls for ICANN´s
internationalization and not for it to become an intergovernmental
organization. Those are two different notions that should not be confounded.
If this subgroup fails to deal with the multidimensional issues associated to
jurisdiction properly , it may be applauded by some segments , but it will not
contribute to putting in place a framework that will ensure the shared goal of
making ICANN a legitimate entity in the eyes of all stakeholders, including
governments. To achieve that, no issues should be discarded as "non
important" or "not yet verified". While preserving the essence of what was
achieved in WS1, innovative thinking, including on the part of persons with
legal expertise, will be needed. Is it worth to wipe an important debate under
the carpet just to comfort one or a few stakeholder groups while
discontenting others? What kind of legitimacy is such a biased and limited
exercise likely to have within the international community? .
It is time the subgroup - including the coChairs - make a honest assessment of
the various viewpoints related to ICANN's jurisdiction and conduct the debate
as openly as possible in order to address all the concerns and interests behind
it.
Kind regards,
Sec. Pedro Ivo Ferraz da Silva
Division of Information Society
Ministry of Foreign Affairs - Brazil
T: +55 61 2030-6609 <+55%2061%202030-6609>
________________________________
De:
accountability-cross-community-bounces@icann.org [accountability-
cross-community-bounces@icann.org] em nome de parminder
[parminder@itforchange.net]
Enviado: quinta-feira, 22 de dezembro de 2016 14:01
Para: Kavouss Arasteh; Greg Shatan
Cc:
accountability-cross-community@icann.org
Assunto: Re: [CCWG-ACCT] Jurisdiction Proposed Questions and Poll Results
Dear Kavouss
You are right, we should first deal with the issue of the questionnaire.
I agree, as do many others, that there is no justification to remove the
proposed Q 4 from the questionnaire. The question must go out along with
others.
A question seeking information is only a question seeking information. People
may chose to not respond to it, or give different responses, likely in
opposition to one another. That is all very fine, and quite expected. But such
forceful arguments to not ask for certain kinds of information is very
disturbing, even alarming. (I have issues with how the other questions are
framed, but I am fine to let them go out because some people want them to
be posed.)
Ordinarily, if a good number of participants here wanted a question, that
should be enough to include it. Here, a majority of those who voted on the
issue of this particular question wanted the question included. That should
have conclusively stopped the debate. But no, not so. There is persistent effort
to censor this question. And this in a process that is advertised as open,
transparent, collaborative, and what not. There is something very basically
wrong here.
parminder
On Thursday 22 December 2016 07:20 PM, Kavouss Arasteh wrote:
Dear John.
Dear Parminder,
It is difficult for me to conclude on any solution between the lines of your
discussion.
Could any of you kindly give a resume of the exchanged views.
We need to look for some compromise solution knowing that some hard
liners like x and y insist to impose their objections to send Q4.I continue to
object to all questions until all 4 are agreed Nothing is agreed untill everything
is agreed this is a Global multistakholder Group discussion and NOT North
American Sub-Region multistakholder Group dominated by certain individuals
Regards Kavouss
2016-12-22 13:06 GMT+01:00 parminder
<parminder@itforchange.net<mailto:parminder@itforchange.net>>:
On Tuesday 20 December 2016 08:37 PM, John Laprise wrote:
"To turn ones face away and say, nothing can be done here, to evolve our
democratic international systems, is to vote for a status quo which serves
some, but not others."
Rather, it is an acknowledgement of reality.
Apologies for appearing to be flippant, but isnt that what every status quo-ist
says.
Rule of law is neither globally strong nor evenly distributed. I can imagine a
world in which the way forward you describe is plausible but, regrettably, it is
not the one we live in. Other systems need strengthening and in some cases
even existence before the way forward is open. It's not a vote for the status
quo but a recognition of path dependency.
I am not asking for a violent deviation from the path - both options that I
propose, a new international law and immunity under existing US Act carries
forward the path-dependency, and completely safeguard the existing
structures and processes of ICANN, the system I think you allude to as
requiring strengthening. What I propose in fact further strengthens it, to a
considerable extent. The ICANN system's current jurisdictional oversight by a
single country is its biggest weak point in terms of international legitimacy. ( A
point, unfortunately USians here seem not able to see and sympathise with.)
Imagine an ICANN with immunity from US jurisdiction; how much legitimacy,
and thus strength, it adds to the system.
Thanks for the back rounder Parminder. It was, along with some parallel
research, quite helpful.
Thanks John, you are welcome.
The problem remains however that there is no analogous organization to
ICANN merely in terms of its contractual authority.
Firstly, if we are hoping that a fully-developed, well-rounded solution, with
everything fully covered by enough exact precedents, to this complex but very
genuine problem, will simply one day drop in our laps, I assure you that this is
not going to happen. We have to work for it, join the dots, take risks, make
innovations, and so on. The point is, who is losing and gaining what from the
present dispensation, and who is willing to do what is required to do.
Next, I see that organisations like International Fertilizer and Development
Centre, which we cited as an example of an NPO given jurisdictional
immunity, also does run many projects worldwide. Any such project would
require use of a legal status, entering contracts, and so on.... We just need to
look into it. But if we close our eyes, and simply refuse to explore options, we
are not going to get anywhere. I am not saying this example will be an exact fit
for our requirement, but we need to see what is possible, and innovate and
evolve over it.
I'd also add that many of the benefits of the act are at the discretion of the US
Secretary of State and can be revoked.
Yes, which is why immunity under US Act is less sustainable option than
international law based immunity. But still better than the present condition.
In the recent civil society statement on
jurisdiction< http://www.itforchange.net/sites/default/files/Jurisdiction%20of
%20ICANN.pdf>, we also suggested a method whereby any such withdrawal of
immunity can be made difficult/ ineffectual (see option 3 in the end).
The proposed jurisdictional immunity would also require all governments to
sign off on such status, given ICANN's reach.
I dont see why so. Only US gov needs to agree.
I know that there is a significant literature on international compacts and law.
Given the often decades long time frames for the passage and acceptance of
such law, the Internet as we know it is unlikely to exist by the time it comes
into force.
These are weak excuses. It can be done in 6 months. But in any case, if it
satisfies those who want to move towards international jurisdiction, what do
you lose in allowing to set in motion the process, esp if you think it would take
forever to do anything. Let those who want have it. In the interim, status quo
would stay.
To your question about why we do not discuss jurisdictional immunity under
US law: it is because the domestic political reality of the situation makes such
an eventuality so remote as to be hypothetical.
The same domestic situation makes the continuation of ICANN under US
jurisdiction even less tenable.
This brings me to a very important point: the job of CCWG, working on behalf
of the global community, is not to second guess what US gov will accept or
not (unfortunately, that is what it has mostly done). If this was its real task, we
as well may let US gov do what it may, instead of providing them the cover of
legitimacy of the supposed will of the so called 'global community' which is
what this process does. Our job is to recommend what we think in is best
global interest, and is ordinarily plausible to do. This is what our job is, and we
must just do that. Let US gov do its job - accept our recs or not. That burden is
upon them - let s not take up their burden. This aspect of the work of the
"community" groups involved in the transition process has always greatly
bothered me. We must have clarity about - on whose behalf are we working (i
think, for the global community, but you can clarify) and what our recs must
be based on (I think, on our understanding of what is best for the global
community, and not what we think US gov likes and would agree to, and what
not, but again you can clarify)
The described quest is admirable but IMO is a non-starter. Conditions do not
exist presently to make it a possible.
We are part of once in decades constitutional process about ICANN's
structures. If it is not now, it is never.
parminder
Best regards,
John Laprise, Ph.D.
Consulting Scholar
<http://www.linkedin.com/in/jplaprise/><; http://www.linkedin.com/in/jplapri
From: parminder
[<mailto:parminder@itforchange.net>mailto:parminder@itforchange.net]
Sent: Tuesday, December 20, 2016 2:57 AM
To: John Laprise <mailto:jlaprise@gmail.com>
<jlaprise@gmail.com><mailto:jlaprise@gmail.com>; accountability-cross-
community@icann.org<mailto:accountability-cross-community@icann.org>
Subject: Re: [CCWG-ACCT] Jurisdiction Proposed Questions and Poll Results
On Monday 19 December 2016 08:14 PM, John Laprise wrote:
Possibilities of jurisdictional immunity? Could you please provide examples of
organizations that enjoy such.
John
The most well known case of jurisdictional immunity is of course for
organisations incorporated under international law. Unlike what has been
argued here variously, although international law has to be made by
governments through treaties etc that says nothing about the actual
governance structure of the concerned organisation, ICANN in this case.
International law can, to take an extreme case, hand over complete
governance of a body created/ incorporated under international law to you
and me... Nothing circumscribes how international law is written as long as all
countries agree to it. It is entirely possible, and I think extremely plausible,
that they would agree to write in such law the exact governance structure of
ICANN as it is at present. Right now too, ICANN exists by and under the
strength of its law of incorporation which is US law. In the scenario I present,
it would just be international law instead of US law. Yes, there are matters to
worked out in this regard, but if democracy and self-determination of all
people, equally, is of any importance at all, we can go through the process,
including doing the needed innovations as needed. The current international
system was not handed over to us by God, it was evolved by people like us,
who responded appropriately to newer and newer global challenges, as the
one that faces us now. To turn ones face away and say, nothing can be done
here, to evolve our democratic international systems, is to vote for a status
quo which serves some, but not others. And these are the others that are
protesting here, and seeking appropriate change. It is a political issue, lets not
treat it as a technical issue, of what is argued to be difficult or too
"troublesome" to pursue.
Next, even without going the international law route, as has been said many
times earlier here, US law allows even non profits to be given jurisdictional
immunity. The concerned law is the United States International Organisations
Immunities Act<https://archive.icann.org/en/psc/annex9.pdf> . And an
example of a US non-profit being given jurisdiction immunity under it is
International Fertilizer and Development Center. This has been discussed in a
report commissioned by ICANN itself which can be found at
https://archive.icann.org/en/psc/corell-24aug06.html .
I have been unable to understand why can we not agree to even jurisdictional
immunity under existing US law, which keeps ICANN in the US, preserves its
existing structures, and does go considerable way to address the concerns
about those who are concerned about application of US public law on ICANN,
and what it may mean for its global governance work.
The argument is advanced that this may affect the operation of the newly
instituted community accountability mechanism. I dont think this is not true.
This mechanism is a matter of internal ICANN governance system, which is a
'private' arrangement with choice of law available to it. It simply has to be put
in ICANN bylaws that ICANN governance processes will be subject to
adjudication by Californian courts as present. That should do. Of course the
mentioned International Fertilizer and Development Centre also must be
existing with some governance systems, that admit of external adjudication,
even as it enjoys the benefit of jurisdictional immunity from US public laws.
Such immunity always only pertains to the policy and such international core
activities of the concerned organisation, and associated matters. It would not,
for instance, extend to actual crime being committed by its personnel on its
premises. All such matters of various distinctions get taken care of when we
enter the actual processes of such immunities etc. Right now, the issue is only
to decide to go down the route, or not.
parminder
Best regards,
John Laprise, Ph.D.
Consulting Scholar
http://www.linkedin.com/in/jplaprise/
From: accountability-cross-community-
bounces@icann.org<mailto:accountability-cross-community-
bounces@icann.org> [mailto:accountability-cross-community-
bounces@icann.org] On Behalf Of parminder
Sent: Monday, December 19, 2016 7:10 AM
To:
accountability-cross-community@icann.org<mailto:accountability-cross-
community@icann.org>
Subject: Re: [CCWG-ACCT] Jurisdiction Proposed Questions and Poll Results
On Saturday 17 December 2016 12:40 AM, Mueller, Milton L wrote:
SNIP
John Laprise's wording was much, much better:
"What are the advantages or disadvantages, if any, relating to changing
ICANN's jurisdiction*, particularly with regard to the actual operation of
ICANN's policies and accountability mechanisms?"
This formulation does not include possibilities of jurisdictional immunity.
Something like
"What are the advantages or disadvantages, if any, relating to changing
ICANN's jurisdiction*, or providing possible jurisdictional immunity,
particularly with regard to the actual operation of ICANN's policies and
accountability mechanisms?"
would be better.
parminder
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Grec, Let us go ahead with the matter as soon as possible Kavouss 2016-12-28 5:29 GMT+01:00 Greg Shatan <gregshatanipc@gmail.com>:
I agree that problems is a better term. I was using "issues" in the lawyerly sense, which does mean a real, demonstrable problem, and not merely a hypothetical assertion.
Greg
On Tue, Dec 27, 2016 at 9:19 PM Phil Corwin <psc@vlaw-dc.com> wrote:
I support alternative 1 of question 4.
Rather than issues, I believe we should be focus on on demonstrable problems. Issues can just consists of debating points absent real world evidence of something broken or substantially sub-optimal requiring a remedy.
*Philip S. Corwin, Founding Principal*
*Virtualaw LLC*
*1155 F Street, NW*
*Suite 1050*
*Washington, DC 20004*
*202-559-8597 <(202)%20559-8597>/Direct*
*202-559-8750 <(202)%20559-8750>/Fax*
*202-255-6172 <(202)%20255-6172>/cell*
*"Luck is the residue of design" -- Branch Rickey*
------------------------------
*From:* ws2-jurisdiction-bounces@icann.org [ws2-jurisdiction-bounces@ icann.org] on behalf of Greg Shatan [gregshatanipc@gmail.com]
*Sent:* Tuesday, December 27, 2016 3:28 PM
*To:* ws2-jurisdiction@icann.org
*Subject:* [Ws2-jurisdiction] Focus, Working Method and Revisions to Proposed Questions: RESPONSE REQUESTED [was: Jurisdiction Proposed Questions and Poll Results]
All,
I'm sending this to the Jurisdiction subgroup list, since this was initially send to a discussion thread on jurisdiction taking place on the CCWG list.
*Please respond here, rather than there. Thank you.*
Greg
The following responses were received on the Accountability list:
*Parminder*:
Greg/ All
I think the Alternative 1, which you take as likely candidate for broader support, is fine. I list this formulation below:
What are the advantages or disadvantages, if any, relating to ICANN's jurisdiction*, particularly with regard to the actual operation of ICANN’s policies and accountability mechanisms? Please support your response with appropriate
examples, references to specific laws, case studies, other studies, and analysis. In particular, please indicate if there are current or past instances that highlight such advantages or problems.
(* For these questions, “ICANN’s jurisdiction” refers to (a) ICANN being subject to U.S. and California law as a result of its incorporation and location in California, (b) ICANN being subject to the laws of any other country as
a result of its location within or contacts with that country, or (c) any “choice of law” or venue provisions in agreements with ICANN.)
ENDS
Lets move on with it. We are spending too much time on framing a question.
*Kavouss Arasteh: *
Grec,
Tks again,
As I said I believe ,it is counter productive to discuss many alternative,
I could agree with formulation of Parminder
Regards
Kavouss
*Sam Lanfranco:*
Greg,
Thank you for presenting alternatives for reaching agreement on a
* Roadmap for Moving Forward to identify operational issues embedded in the overall “jurisdiction” issue*. It is important to recognize that what is being proposed is the choice of roadmap for moving forward. Where this takes us will flow
from the assembly of evidence, the application of analysis, and the resulting array of possible options for addressing jurisdiction base operational issues.
Sam Lanfranco
---------- Forwarded message ----------
From: *Greg Shatan* <gregshatanipc@gmail.com>
Date: Tue, Dec 27, 2016 at 2:56 AM
Subject: Re: [CCWG-ACCT] RES: Jurisdiction Proposed Questions and Poll Results
To: "accountability-cross-community@icann.org" <accountability-cross- community@icann.org>
All:
Two quick but important points:
1. We have strayed from the basic topic in front of us, which is to decide on the formulation of the questions to be sent out. I have gone through the emails and meeting notes and pulled the alternative formulations
and revisions in to a single document, attached to this email.
With regard to question 4, I believe that the best way to move forward is to see if one of the alternatives gets stronger support within the CCWG. If we can get to a point where there is broad support for the question
without significant opposition that may resolve issues relating to whether and when this question will be sent out.
2. Our overall agreed-upon working method is to first identify, discuss and arrive at a list of issues that raise concerns, and then move on to identifying, discussing and arriving at a list of potential remedies
for each issue on our list. We are still working on issues. For a remedy to be up for discussion when we move to discussing remedies, that remedy needs to provide a solution to an issue. We can't discuss a potential remedy without having an issue it is
intended to solve. If there is a potential "remedy" but it does not solve any of our issues, we won't discuss it.
We've already put aside one potential "remedy" until we see whether we identify any issues it would solve -- the "remedy" of changing ICANN's jurisdiction of incorporation or headquarters location. "Immunity" is
another potential remedy that we need to deal with the same way. Skipping forward to discussions of remedies is only slowing down our discussion of issues. I strongly suggest we refocus on issues, so that we can get to the discussion of remedies. Once we've
agreed on a list of issues, a discussion of remedies will be more productive.
Our working method of dealing with issues first and then remedies may also help us find agreement on a way to deal with question 4. Questions 1-3 clearly deal with issues. Perhaps a version of question 4 that is
limited to asking for issues will get broader support ("Alternative 1" on the attachment may fit this description.)
Greg
On Mon, Dec 26, 2016 at 1:41 PM, Seun Ojedeji
<seun.ojedeji@gmail.com> wrote:
Hello,
I also don't see the logic in sending two questionnaires. There may be some logic in treating the responses to questions 1 to 3 separate from question 4, but we are not yet at that stage. It will be better the question is not added at all than
to send it as a separate questionnaire.
Overall I am indifferent about adding or not adding but since there is seemingly a lot of support to add, I don't see the significant harm it will cause by doing that[1]. Based on the response of the Co-Chairs to my question, I would suggest that it's better
to let all the 4 questions be presented and let's see what issues emerge from their responses. Then we can start to do a few round trips to legal and hopefully remind ourselves the possible consequences of addressing certain issues in a particular way. Some
of which has already been echoed during WS1.
Regards
1. Nevermind that it could generate some political news/headlines but am sure this group is already used to that by now ;-)
Sent from my LG G4
Kindly excuse brevity and typos
On 26 Dec 2016 19:19, "avri doria" <avri@acm.org> wrote:
Hi,
Where we differ is on the idea of separating the questions into 2
questionnaires.
I think it is going to be hard enough to get people to pay attention to
one questionnaire, asking them to do two is daunting. A fourth question
will not test their patience in the same way another questionnaire would.
So with Kavouss I say:
Allow all 4 questions go out and then wait what will happens .
avri
On 26-Dec-16 11:42, Mueller, Milton L wrote:
-----Original Message-----
At the same time, let us all try to return to a constructive and step-by-step
approach, building on the progress made so far, in order to make progress on
our mandate, established by the whole multistakeholder community back in
Marrakech.
I agree, and I think both Pedro's and Phil's position are based on some confusion of issues. It we calm down a bit and look at this more carefully we can make progress.
Pedro may be confusing the inclusion or exclusion of Question 4 in our initial request with the question of whether we explore issues in US jurisdiction at all. But excluding Question 4 from our initial request for information is not the same as a refusal
to explore the questions it raises. I have proposed _separating_ Q4 from the other 3 questions, not eliminating it entirely. I proposed this not because I want to avoid the questions Q4 poses, but because I want those questions to be developed better and I
want to avoid conflating it with the narrower questions about dispute resolution that Q's 1-3 were designed to address. It is a mistake to put those two things together. The information we gather from Q's 1-3 will suffer from their attachment to the potentially
more controversial issues raised by Q4. Let me also add that the divisive insistence that this is a matter of US citizens vs non-US citizens needs to be dropped. Avri and myself, e.g., are both US citizens/residents and have serious concerns about possible
intrusions of US foreign policy and other nationalistic and governmental concerns into ICANN matters. At the same time we are both staunch supporters of a nongovernmental model in this space and have no inherent objection to California law as ICANN's basis.
Phil Corwin on the other hand is confusing the issue of whether ICANN's corporate HQ is in California with the question of whether ICANN will be an intergovernmental entity. These questions have very little to do with each other. It is of course true that
there are still a few people out there who would like for ICANN to become intergovernmental, but they are a tiny minority and the weight of history is totally against them. Put more bluntly, it ain't gonna happen. Supporters of the MS model and opponents of
intergovernmentalism have legitimate reasons to investigate the impact of US jurisdiction, because the US is a global power with very specific foreign policy and military interests. US jurisdiction thus may have the potential to create opportunities for one
government - the US - to have an inappropriate level of influence over ICANN's transnational, nonstate actor based governance processes. One can consider those issues without implying that ICANN's corporate HQ needs to move.
So let's stop making the status of Q4 a proxy for a long-settled war over whether ICANN is private or governmental, and let's stop pretending that those who want to separate the issues raised by Q4 from the narrower more focused issues in Q1-3 are trying
to avoid legitimate issues.
As for creating a separate CCWG, are you kidding? This is the CCWG subgroup created specifically for jurisdictional issues and we don't make difficult issues easier to resolve by creating additional structures.
Dr. Milton L. Mueller
Professor, School of Public Policy
Georgia Institute of Technology
In this vein, and consistent with our conversation in Hyderabad, let us
continue with the line directed to requesting input from the wider community.
The four questions developed so far will allow us to gather much needed input
on facts, examples and well-founded opinions on the influence of ICANNs
jurisdiction, taking into account its multiple layers, on its operations and
accountability.
If we all are constructive and accept esch others' views as worthy of further
discussion and study, we will be able to get this important step further.
Hence, let us please stay on the right track and finalize formulations of all four
questions, and keep up the good spirit of cooperation.
with my best wishes for you all during the festivities
kind regards
Jorge
________________________________
Von: Pedro Ivo Ferraz da Silva <pedro.ivo@itamaraty.gov.br>
Datum: 24. Dezember 2016 um 15:53:55 MEZ
An: Greg Shatan <gregshatanipc@gmail.com>, parminder
<parminder@itforchange.net>, Kavouss Arasteh
<kavouss.arasteh@gmail.com>
Cc:
accountability-cross-community@icann.org <accountability-cross-
community@icann.org>
Betreff: [CCWG-ACCT] RES: Jurisdiction Proposed Questions and Poll Results
Dear CCWG-colleagues,
After reading some comments in this email thread, I must admit to be really
disappointed.
Some of our colleagues in the CCWG seem to have forgotten - perhaps on
purpose - that the topic of jurisdiction was allocated to WS2 as a result of a
postponement, since the majority of this group thought it was not appropriate
to deal with it in the pre-transition period due to time constraints. My
government was not in favor of postponing the discussion on jurisdiction, as
we consider it was - and remains - a fundamental aspect of a new ICANN truly
governed by the multistakeholder community without any pre-conditions,
but in respect to the viewpoint of the other colleagues, we agreed to move it
to WS2.
Now that time has come to properly deal with this topic, it is quite frustrating
to notice that some participants insist on limiting and/or procrastinating this
debate, including by using the absurd argument that any discussion around
jurisdiction cannot put into question any aspect already decided in WS1,
which is embedded in the California law. We cannot see good faith in that kind
of circular argument.
In our view, the discussion around the inclusion or exclusion of Q.4 shows
quite clearly that some of those who have fiercely objected to any jurisdiction
debate during WS1 are maintaining their objection in WS2 as well. On that
particular topic (Q.4) we concur with the view that upon deciding on
institutional arrangements we should not only consider already occurred
cases but also take into account logically strong possibilities. The responses to
the questionnaire should thus help us to deal with all possibilities associate to
jurisdiction. In case any unsubstantiated opinion will be received, it should be
summarily discarded.
From the various jurisdiction calls it became quite evident that a substantial
part of the subgroup - mainly non-US - has great interest in examining and
debating ways through which we can make sure that any issue associated to
jurisdiction be addressed in a way compatible with the company's
international remit of coordinating Internet public identifiers. In that context, I
would like to highlight my government´s understanding that although the
proposed questionnaire under discussion may provide us with some relevant
factual information, it does not in any way cover all aspects of interest. We
would like to refer, for example, to the list of issues compiled by Kavouss
Arasteh as per his 13 December 2016 e-mail. We would also refer to
questions that have continuously been asked by Parminder, apparently
without any satisfactory answer. Those issues and questions include, for
example, dispute settlement related topics, which demonstrates, in our view,
that jurisdiction cannot be seen purely from businesses´ viewpoint. As
someone has stated, we also need to look at the relationship between ICANN
and third parties and adequately consider non-contracted Parties that might
be affected by ICANN´s acts and/or omissions.
From the perspective of the Brazilian government, the topics raised by
Kavouss, Parminder and others are issues of particular interest which,
needless to say, will not be adequately addressed through the mere analysis
of the answers provided to the questionnaire, whether it includes Q.4 or not.
My government has expressed its interest in pursuing discussion on
jurisdiction through those angles many times - both during the IANA
transition process and well before that. Other governments have done the
same, as well as a sound number of civil society organizations around the
globe. The "NETmundial Multistakeholder Statement", while calling for the
internationalization of ICANN, clearly expresses this as well. Let me
emphasize, by the way, that the NETmundial Statement calls for ICANN´s
internationalization and not for it to become an intergovernmental
organization. Those are two different notions that should not be confounded.
If this subgroup fails to deal with the multidimensional issues associated to
jurisdiction properly , it may be applauded by some segments , but it will not
contribute to putting in place a framework that will ensure the shared goal of
making ICANN a legitimate entity in the eyes of all stakeholders, including
governments. To achieve that, no issues should be discarded as "non
important" or "not yet verified". While preserving the essence of what was
achieved in WS1, innovative thinking, including on the part of persons with
legal expertise, will be needed. Is it worth to wipe an important debate under
the carpet just to comfort one or a few stakeholder groups while
discontenting others? What kind of legitimacy is such a biased and limited
exercise likely to have within the international community? .
It is time the subgroup - including the coChairs - make a honest assessment of
the various viewpoints related to ICANN's jurisdiction and conduct the debate
as openly as possible in order to address all the concerns and interests behind
it.
Kind regards,
Sec. Pedro Ivo Ferraz da Silva
Division of Information Society
Ministry of Foreign Affairs - Brazil
T: +55 61 2030-6609 <+55%2061%202030-6609>
________________________________
De:
accountability-cross-community-bounces@icann.org [accountability-
cross-community-bounces@icann.org] em nome de parminder
[parminder@itforchange.net]
Enviado: quinta-feira, 22 de dezembro de 2016 14:01
Para: Kavouss Arasteh; Greg Shatan
Cc:
accountability-cross-community@icann.org
Assunto: Re: [CCWG-ACCT] Jurisdiction Proposed Questions and Poll Results
Dear Kavouss
You are right, we should first deal with the issue of the questionnaire.
I agree, as do many others, that there is no justification to remove the
proposed Q 4 from the questionnaire. The question must go out along with
others.
A question seeking information is only a question seeking information. People
may chose to not respond to it, or give different responses, likely in
opposition to one another. That is all very fine, and quite expected. But such
forceful arguments to not ask for certain kinds of information is very
disturbing, even alarming. (I have issues with how the other questions are
framed, but I am fine to let them go out because some people want them to
be posed.)
Ordinarily, if a good number of participants here wanted a question, that
should be enough to include it. Here, a majority of those who voted on the
issue of this particular question wanted the question included. That should
have conclusively stopped the debate. But no, not so. There is persistent effort
to censor this question. And this in a process that is advertised as open,
transparent, collaborative, and what not. There is something very basically
wrong here.
parminder
On Thursday 22 December 2016 07:20 PM, Kavouss Arasteh wrote:
Dear John.
Dear Parminder,
It is difficult for me to conclude on any solution between the lines of your
discussion.
Could any of you kindly give a resume of the exchanged views.
We need to look for some compromise solution knowing that some hard
liners like x and y insist to impose their objections to send Q4.I continue to
object to all questions until all 4 are agreed Nothing is agreed untill everything
is agreed this is a Global multistakholder Group discussion and NOT North
American Sub-Region multistakholder Group dominated by certain individuals
Regards Kavouss
2016-12-22 13:06 GMT+01:00 parminder
<parminder@itforchange.net<mailto:parminder@itforchange.net>>:
On Tuesday 20 December 2016 08:37 PM, John Laprise wrote:
"To turn ones face away and say, nothing can be done here, to evolve our
democratic international systems, is to vote for a status quo which serves
some, but not others."
Rather, it is an acknowledgement of reality.
Apologies for appearing to be flippant, but isnt that what every status quo-ist
says.
Rule of law is neither globally strong nor evenly distributed. I can imagine a
world in which the way forward you describe is plausible but, regrettably, it is
not the one we live in. Other systems need strengthening and in some cases
even existence before the way forward is open. It's not a vote for the status
quo but a recognition of path dependency.
I am not asking for a violent deviation from the path - both options that I
propose, a new international law and immunity under existing US Act carries
forward the path-dependency, and completely safeguard the existing
structures and processes of ICANN, the system I think you allude to as
requiring strengthening. What I propose in fact further strengthens it, to a
considerable extent. The ICANN system's current jurisdictional oversight by a
single country is its biggest weak point in terms of international legitimacy. ( A
point, unfortunately USians here seem not able to see and sympathise with.)
Imagine an ICANN with immunity from US jurisdiction; how much legitimacy,
and thus strength, it adds to the system.
Thanks for the back rounder Parminder. It was, along with some parallel
research, quite helpful.
Thanks John, you are welcome.
The problem remains however that there is no analogous organization to
ICANN merely in terms of its contractual authority.
Firstly, if we are hoping that a fully-developed, well-rounded solution, with
everything fully covered by enough exact precedents, to this complex but very
genuine problem, will simply one day drop in our laps, I assure you that this is
not going to happen. We have to work for it, join the dots, take risks, make
innovations, and so on. The point is, who is losing and gaining what from the
present dispensation, and who is willing to do what is required to do.
Next, I see that organisations like International Fertilizer and Development
Centre, which we cited as an example of an NPO given jurisdictional
immunity, also does run many projects worldwide. Any such project would
require use of a legal status, entering contracts, and so on.... We just need to
look into it. But if we close our eyes, and simply refuse to explore options, we
are not going to get anywhere. I am not saying this example will be an exact fit
for our requirement, but we need to see what is possible, and innovate and
evolve over it.
I'd also add that many of the benefits of the act are at the discretion of the US
Secretary of State and can be revoked.
Yes, which is why immunity under US Act is less sustainable option than
international law based immunity. But still better than the present condition.
In the recent civil society statement on
jurisdiction<http://www.itforchange.net/sites/default/ files/Jurisdiction%20of
%20ICANN.pdf>, we also suggested a method whereby any such withdrawal of
immunity can be made difficult/ ineffectual (see option 3 in the end).
The proposed jurisdictional immunity would also require all governments to
sign off on such status, given ICANN's reach.
I dont see why so. Only US gov needs to agree.
I know that there is a significant literature on international compacts and law.
Given the often decades long time frames for the passage and acceptance of
such law, the Internet as we know it is unlikely to exist by the time it comes
into force.
These are weak excuses. It can be done in 6 months. But in any case, if it
satisfies those who want to move towards international jurisdiction, what do
you lose in allowing to set in motion the process, esp if you think it would take
forever to do anything. Let those who want have it. In the interim, status quo
would stay.
To your question about why we do not discuss jurisdictional immunity under
US law: it is because the domestic political reality of the situation makes such
an eventuality so remote as to be hypothetical.
The same domestic situation makes the continuation of ICANN under US
jurisdiction even less tenable.
This brings me to a very important point: the job of CCWG, working on behalf
of the global community, is not to second guess what US gov will accept or
not (unfortunately, that is what it has mostly done). If this was its real task, we
as well may let US gov do what it may, instead of providing them the cover of
legitimacy of the supposed will of the so called 'global community' which is
what this process does. Our job is to recommend what we think in is best
global interest, and is ordinarily plausible to do. This is what our job is, and we
must just do that. Let US gov do its job - accept our recs or not. That burden is
upon them - let s not take up their burden. This aspect of the work of the
"community" groups involved in the transition process has always greatly
bothered me. We must have clarity about - on whose behalf are we working (i
think, for the global community, but you can clarify) and what our recs must
be based on (I think, on our understanding of what is best for the global
community, and not what we think US gov likes and would agree to, and what
not, but again you can clarify)
The described quest is admirable but IMO is a non-starter. Conditions do not
exist presently to make it a possible.
We are part of once in decades constitutional process about ICANN's
structures. If it is not now, it is never.
parminder
Best regards,
John Laprise, Ph.D.
Consulting Scholar
<http://www.linkedin.com/in/jplaprise/><http://www. linkedin.com/in/jplapri
From: parminder
[<mailto:parminder@itforchange.net>mailto:parminder@itforchange.net]
Sent: Tuesday, December 20, 2016 2:57 AM
To: John Laprise <mailto:jlaprise@gmail.com>
<jlaprise@gmail.com><mailto:jlaprise@gmail.com>; accountability-cross-
community@icann.org<mailto:accountability-cross-community@icann.org>
Subject: Re: [CCWG-ACCT] Jurisdiction Proposed Questions and Poll Results
On Monday 19 December 2016 08:14 PM, John Laprise wrote:
Possibilities of jurisdictional immunity? Could you please provide examples of
organizations that enjoy such.
John
The most well known case of jurisdictional immunity is of course for
organisations incorporated under international law. Unlike what has been
argued here variously, although international law has to be made by
governments through treaties etc that says nothing about the actual
governance structure of the concerned organisation, ICANN in this case.
International law can, to take an extreme case, hand over complete
governance of a body created/ incorporated under international law to you
and me... Nothing circumscribes how international law is written as long as all
countries agree to it. It is entirely possible, and I think extremely plausible,
that they would agree to write in such law the exact governance structure of
ICANN as it is at present. Right now too, ICANN exists by and under the
strength of its law of incorporation which is US law. In the scenario I present,
it would just be international law instead of US law. Yes, there are matters to
worked out in this regard, but if democracy and self-determination of all
people, equally, is of any importance at all, we can go through the process,
including doing the needed innovations as needed. The current international
system was not handed over to us by God, it was evolved by people like us,
who responded appropriately to newer and newer global challenges, as the
one that faces us now. To turn ones face away and say, nothing can be done
here, to evolve our democratic international systems, is to vote for a status
quo which serves some, but not others. And these are the others that are
protesting here, and seeking appropriate change. It is a political issue, lets not
treat it as a technical issue, of what is argued to be difficult or too
"troublesome" to pursue.
Next, even without going the international law route, as has been said many
times earlier here, US law allows even non profits to be given jurisdictional
immunity. The concerned law is the United States International Organisations
Immunities Act<https://archive.icann.org/en/psc/annex9.pdf> . And an
example of a US non-profit being given jurisdiction immunity under it is
International Fertilizer and Development Center. This has been discussed in a
report commissioned by ICANN itself which can be found at
https://archive.icann.org/en/psc/corell-24aug06.html .
I have been unable to understand why can we not agree to even jurisdictional
immunity under existing US law, which keeps ICANN in the US, preserves its
existing structures, and does go considerable way to address the concerns
about those who are concerned about application of US public law on ICANN,
and what it may mean for its global governance work.
The argument is advanced that this may affect the operation of the newly
instituted community accountability mechanism. I dont think this is not true.
This mechanism is a matter of internal ICANN governance system, which is a
'private' arrangement with choice of law available to it. It simply has to be put
in ICANN bylaws that ICANN governance processes will be subject to
adjudication by Californian courts as present. That should do. Of course the
mentioned International Fertilizer and Development Centre also must be
existing with some governance systems, that admit of external adjudication,
even as it enjoys the benefit of jurisdictional immunity from US public laws.
Such immunity always only pertains to the policy and such international core
activities of the concerned organisation, and associated matters. It would not,
for instance, extend to actual crime being committed by its personnel on its
premises. All such matters of various distinctions get taken care of when we
enter the actual processes of such immunities etc. Right now, the issue is only
to decide to go down the route, or not.
parminder
Best regards,
John Laprise, Ph.D.
Consulting Scholar
http://www.linkedin.com/in/jplaprise/
From: accountability-cross-community-
bounces@icann.org<mailto:accountability-cross-community-
bounces@icann.org> [mailto:accountability-cross-community-
bounces@icann.org] On Behalf Of parminder
Sent: Monday, December 19, 2016 7:10 AM
To:
accountability-cross-community@icann.org<mailto:accountability-cross-
community@icann.org>
Subject: Re: [CCWG-ACCT] Jurisdiction Proposed Questions and Poll Results
On Saturday 17 December 2016 12:40 AM, Mueller, Milton L wrote:
SNIP
John Laprise's wording was much, much better:
"What are the advantages or disadvantages, if any, relating to changing
ICANN's jurisdiction*, particularly with regard to the actual operation of
ICANN's policies and accountability mechanisms?"
This formulation does not include possibilities of jurisdictional immunity.
Something like
"What are the advantages or disadvantages, if any, relating to changing
ICANN's jurisdiction*, or providing possible jurisdictional immunity,
particularly with regard to the actual operation of ICANN's policies and
accountability mechanisms?"
would be better.
parminder
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participants (3)
-
Greg Shatan -
Kavouss Arasteh -
Phil Corwin