Jurisdiction Questionnaire: RESPONSE REQUESTED
All, We made some good progress on our call on Friday, January 6. Following a wide-ranging discussion, we were able to make some headway on refining the draft questionnaire. I encourage those who missed the call to review the recording and notes. Specifically, we came to a preliminary conclusion on revising the Preamble and Question 1, subject to comment on this list and a final discussion on our next call (Tuesday, January 10 at 13:00). Question 2 had no revisions suggested, and Question 3 had only one revision suggested. The Preamble and Questions 1, 2 and 3 (with the proposed revision in "track changes") are in the first document below (Word and PDF documents) and also in text below. *Please review this version of the Preamble and Questions 1-3 and provide support (or lack of support) and/or comments for this portion.* We also discussed several aspects of Question 4, including the purpose of the question; whether the question is different in nature from Questions 1-3; whether or not the question should be included in this questionnaire, a subsequent questionnaire or not at all; the types of responses desired (and the types expected); and the drafting of the question itself. With these topics and seven drafting alternatives (and the ability to pick and choose elements of those alternatives), this required more time than we had left on the call. Therefore, we did not come to any preliminary conclusions on Question 4. The drafting alternatives for Question 4 (including the current version) are in the second draft document (Word and PDF). Please look at the alternatives carefully, particularly if you have not supported sending question 4 in its current form. * Please review the options for Question 4 and respond, indicating (a) Which version(s) of Question 4 you could support and which you would object to, and (b) If the answer to (a) is "none," how you would change or combine one or more alternatives in order to support it.* We will conclude this discussion on our call of January 10, so please provide your thoughts and responses before then. Thank you. Greg *VERSION OF PREAMBLE AND QUESTIONS 1-3 FOR REVIEW* *PREAMBLE* The newly-adopted ICANN bylaws created several Work Stream 2 accountability subgroups. One of them, the subgroup on Jurisdiction, is posing the questions below for community input into the subgroup’s deliberations. As directed by Bylaw Article 27, Section 27.1(b)(vi) <https://www.icann.org/resources/pages/governance/bylaws-en/#article27> and to the extent set forth in the CCWG-Accountability Final Report <https://community.icann.org/pages/viewpage.action?pageId=58723827&preview=/5...> ,[1] the Jurisdiction subgroup is addressing jurisdiction*-related questions, including how choice of jurisdiction and applicable laws for dispute settlement impact ICANN's accountability and the actual operation of policies. To help the subgroup in these endeavors we are asking you to consider and respond to the following specific questions. In this regard, the subgroup is asking for concrete, factual submissions (positive, negative, or neutral) that will help ensure that the subgroup’s deliberations are informed, fact-based, and address real issues. The subgroup is interested in all types of jurisdiction-related factual experiences, not just those involving actual disputes/court cases. *QUESTION 1* Has your business, your privacy or your ability to use or purchase domain name-related services been affected by ICANN's jurisdiction* in any way? If the answer is Yes, please describe specific cases, situations or incidents, including the date, the parties involved, and links to any relevant documents. Please note that “affected” may refer to positive and/or negative effects. *QUESTION 2* Has ICANN's jurisdiction* affected any dispute resolution process or litigation related to domain names you have been involved in? If the answer is Yes, please describe specific cases, situations or incidents, including the date, the parties involved, and links to any relevant documents. Please note that “affected” may refer to positive and/or negative effects. *QUESTION 3* Do you have copies of and/or links to any verifiable reports of experiences of other parties that would be responsive to the questions above? If the answer is yes, please provide these copies and/or links. Please provide either first-person accounts or reliable third-party accounts such as news reports; please do not provide your own version of events. ------------------------------ [1] *See* CCWG-Accountability Main Report, paragraphs 6 and 234, and Annex 12, paragraphs 25-31. * For this Questionnaire, “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.
In my personal opinion we are wandering blindly into unwise, unacceptable territory – very possibly inviting a quagmire of suppositions and opinions that would pose the near certainty of derailing our work. We should not let the perfect be the enemy of the good, but I am unconvinced that the questionnaire as currently proposed could actually lead to a “good” outcome so I don’t see the good at peril here. If we conclude that a questionnaire must go out then I support questions 1-3 as widely supported in the survey we did – with no question 4. If any form of Q4 is to be included it must be fact-based, not opinion-based. Here is what I suggest as a compromise path to resolve the Q4 issue – basically one question in two parts: Are you aware of any material, documented instance(s) where ICANN has been unable to pursue its Mission because of its jurisdiction? If so, please provide documentation. Are you aware of and able to document the existence of an alternative jurisdiction where ICANN would not be so prevented from pursuing its Mission? If so, please provide documentation. Such a questionnaire could of course lead to a full-scale legal due-diligence exercise for suggested alternatives as we recently did with respect to California in Work Stream One (because we would need a demonstration that any such alternative, while possibly solving one perceived problem, did not allow others). Current jurisdiction has worked well for nineteen years and we just finished reorganizing things at great expense to better fit within California with enforceable Empowered Community powers. Is WS2 to change that? I think we have a different mission than that to accomplish by June. Our mission is essentially to look at settlement of dispute jurisdiction issues and right now that seems like plenty to try to get done by June. That Q4 is still under consideration, after failing to gain a clear consensus and even getting substantially less support than question 5 (which basically asked if Q’s 1-3 should go out if Q4 was rejected), is puzzling. How can we release Q4 in these circumstances? This is too important to “wing it and let’s see what happens.” We don’t do survey questions for a living. Don’t we at least need to guarantee that our questions stay within ICANN’s mission and call for answers to do the same? Mathieu, as I recall, said in chat that respondents often go beyond the bounds of what is asked – that tendency itself seems enough to delete Question 4 at the very least. We should just look at the jurisdiction of contracts and dispute settlements, as paragraph 06 of the Final Report puts it. Finally, the questionnaire is sensitive enough that we will likely encounter the same debate when we run it by the full CCWG. David David McAuley International Policy Manager Verisign Inc. 703-948-4154 From: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Greg Shatan Sent: Saturday, January 07, 2017 1:23 PM To: ws2-jurisdiction Subject: [EXTERNAL] [Ws2-jurisdiction] Jurisdiction Questionnaire: RESPONSE REQUESTED All, We made some good progress on our call on Friday, January 6. Following a wide-ranging discussion, we were able to make some headway on refining the draft questionnaire. I encourage those who missed the call to review the recording and notes. Specifically, we came to a preliminary conclusion on revising the Preamble and Question 1, subject to comment on this list and a final discussion on our next call (Tuesday, January 10 at 13:00). Question 2 had no revisions suggested, and Question 3 had only one revision suggested. The Preamble and Questions 1, 2 and 3 (with the proposed revision in "track changes") are in the first document below (Word and PDF documents) and also in text below. Please review this version of the Preamble and Questions 1-3 and provide support (or lack of support) and/or comments for this portion. We also discussed several aspects of Question 4, including the purpose of the question; whether the question is different in nature from Questions 1-3; whether or not the question should be included in this questionnaire, a subsequent questionnaire or not at all; the types of responses desired (and the types expected); and the drafting of the question itself. With these topics and seven drafting alternatives (and the ability to pick and choose elements of those alternatives), this required more time than we had left on the call. Therefore, we did not come to any preliminary conclusions on Question 4. The drafting alternatives for Question 4 (including the current version) are in the second draft document (Word and PDF). Please look at the alternatives carefully, particularly if you have not supported sending question 4 in its current form. Please review the options for Question 4 and respond, indicating (a) Which version(s) of Question 4 you could support and which you would object to, and (b) If the answer to (a) is "none," how you would change or combine one or more alternatives in order to support it. We will conclude this discussion on our call of January 10, so please provide your thoughts and responses before then. Thank you. Greg VERSION OF PREAMBLE AND QUESTIONS 1-3 FOR REVIEW PREAMBLE The newly-adopted ICANN bylaws created several Work Stream 2 accountability subgroups. One of them, the subgroup on Jurisdiction, is posing the questions below for community input into the subgroup’s deliberations. As directed by Bylaw Article 27, Section 27.1(b)(vi)<https://www.icann.org/resources/pages/governance/bylaws-en/#article27> and to the extent set forth in the CCWG-Accountability Final Report<https://community.icann.org/pages/viewpage.action?pageId=58723827&preview=/58723827/58726532/Main%20Report%20-%20FINAL-Revised.pdf>,[1] the Jurisdiction subgroup is addressing jurisdiction*-related questions, including how choice of jurisdiction and applicable laws for dispute settlement impact ICANN's accountability and the actual operation of policies. To help the subgroup in these endeavors we are asking you to consider and respond to the following specific questions. In this regard, the subgroup is asking for concrete, factual submissions (positive, negative, or neutral) that will help ensure that the subgroup’s deliberations are informed, fact-based, and address real issues. The subgroup is interested in all types of jurisdiction-related factual experiences, not just those involving actual disputes/court cases. QUESTION 1 Has your business, your privacy or your ability to use or purchase domain name-related services been affected by ICANN's jurisdiction* in any way? If the answer is Yes, please describe specific cases, situations or incidents, including the date, the parties involved, and links to any relevant documents. Please note that “affected” may refer to positive and/or negative effects. QUESTION 2 Has ICANN's jurisdiction* affected any dispute resolution process or litigation related to domain names you have been involved in? If the answer is Yes, please describe specific cases, situations or incidents, including the date, the parties involved, and links to any relevant documents. Please note that “affected” may refer to positive and/or negative effects. QUESTION 3 Do you have copies of and/or links to any verifiable reports of experiences of other parties that would be responsive to the questions above? If the answer is yes, please provide these copies and/or links. Please provide either first-person accounts or reliable third-party accounts such as news reports; please do not provide your own version of events. _____ [1] See CCWG-Accountability Main Report, paragraphs 6 and 234, and Annex 12, paragraphs 25-31. * For this Questionnaire, “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.
Greg Thank you very much for your effort David I strongle disagree with youp instance not to have question 4 Either ALL questions or NO questions Greg I also strongly DISAGREE WITH YOUR COMENTS Quote * For this Questionnaire, “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*. Unquote Your suggestions advocate a bias to the respondents. Please tell me Who answer to the questions Mainly privâtes sector with all its ability, power, coordination and mobilization Please kindly revise the Astérix part to be neutral in saying that Do you believe that ,to be neutral and impartial **any choice of law” or venue provisions in agreements with the parties concerned. AND NOT IN AGREEMENT WITH ICANN since I do not believe we should talk about agreement with ICANN . Why ICANN.* *AGREEMENT ON THE CHOICE OF LAW should be left to the parties concerned.* *Regards* *Kavouss * 2017-01-07 22:55 GMT+01:00 McAuley, David <dmcauley@verisign.com>:
In my personal opinion we are wandering blindly into unwise, unacceptable territory – very possibly inviting a quagmire of suppositions and opinions that would pose the near certainty of derailing our work.
We should not let the perfect be the enemy of the good, but I am unconvinced that the questionnaire as currently proposed could actually lead to a “good” outcome so I don’t see the good at peril here.
If we conclude that a questionnaire must go out then I support questions 1-3 as widely supported in the survey we did – with no question 4.
If any form of Q4 is to be included it must be fact-based, not opinion-based. Here is what I suggest as a compromise path to resolve the Q4 issue – basically one question in two parts:
*Are you aware of any material, documented instance(s) where ICANN has been unable to pursue its Mission because of its jurisdiction? If so, please provide documentation.*
*Are you aware of and able to document the existence of an alternative jurisdiction where ICANN would not be so prevented from pursuing its Mission? If so, please provide documentation. *
Such a questionnaire could of course lead to a full-scale legal due-diligence exercise for suggested alternatives as we recently did with respect to California in Work Stream One (because we would need a demonstration that any such alternative, while possibly solving one perceived problem, did not allow others).
Current jurisdiction has worked well for nineteen years and we just finished reorganizing things at great expense to better fit within California with enforceable Empowered Community powers. Is WS2 to change that?
I think we have a different mission than that to accomplish by June. Our mission is essentially to look at settlement of dispute jurisdiction issues and right now that seems like plenty to try to get done by June.
That Q4 is still under consideration, after failing to gain a clear consensus and even getting substantially less support than question 5 (which basically asked if Q’s 1-3 should go out if Q4 was rejected), is puzzling. How can we release Q4 in these circumstances?
This is too important to “wing it and let’s see what happens.” We don’t do survey questions for a living. Don’t we at least need to guarantee that our questions stay within ICANN’s mission and call for answers to do the same? Mathieu, as I recall, said in chat that respondents often go beyond the bounds of what is asked – that tendency itself seems enough to delete Question 4 at the very least.
We should just look at the jurisdiction of contracts and dispute settlements, as paragraph 06 of the Final Report puts it.
Finally, the questionnaire is sensitive enough that we will likely encounter the same debate when we run it by the full CCWG.
David
David McAuley
International Policy Manager
Verisign Inc.
703-948-4154 <(703)%20948-4154>
*From:* ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction- bounces@icann.org] *On Behalf Of *Greg Shatan *Sent:* Saturday, January 07, 2017 1:23 PM *To:* ws2-jurisdiction *Subject:* [EXTERNAL] [Ws2-jurisdiction] Jurisdiction Questionnaire: RESPONSE REQUESTED
All,
We made some good progress on our call on Friday, January 6. Following a wide-ranging discussion, we were able to make some headway on refining the draft questionnaire. I encourage those who missed the call to review the recording and notes.
Specifically, we came to a preliminary conclusion on revising the Preamble and Question 1, subject to comment on this list and a final discussion on our next call (Tuesday, January 10 at 13:00). Question 2 had no revisions suggested, and Question 3 had only one revision suggested.
The Preamble and Questions 1, 2 and 3 (with the proposed revision in "track changes") are in the first document below (Word and PDF documents) and also in text below. *Please review this version of the Preamble and Questions 1-3 and provide support (or lack of support) and/or comments for this portion.*
We also discussed several aspects of Question 4, including the purpose of the question; whether the question is different in nature from Questions 1-3; whether or not the question should be included in this questionnaire, a subsequent questionnaire or not at all; the types of responses desired (and the types expected); and the drafting of the question itself. With these topics and seven drafting alternatives (and the ability to pick and choose elements of those alternatives), this required more time than we had left on the call. Therefore, we did not come to any preliminary conclusions on Question 4.
The drafting alternatives for Question 4 (including the current version) are in the second draft document (Word and PDF). Please look at the alternatives carefully, particularly if you have not supported sending question 4 in its current form. * Please review the options for Question 4 and respond, indicating (a) Which version(s) of Question 4 you could support and which you would object to, and (b) If the answer to (a) is "none," how you would change or combine one or more alternatives in order to support it.*
We will conclude this discussion on our call of January 10, so please provide your thoughts and responses before then. Thank you.
Greg
*VERSION OF PREAMBLE AND QUESTIONS 1-3 FOR REVIEW*
*PREAMBLE*
The newly-adopted ICANN bylaws created several Work Stream 2 accountability subgroups. One of them, the subgroup on Jurisdiction, is posing the questions below for community input into the subgroup’s deliberations.
As directed by Bylaw Article 27, Section 27.1(b)(vi) <https://www.icann.org/resources/pages/governance/bylaws-en/#article27> and to the extent set forth in the CCWG-Accountability Final Report <https://community.icann.org/pages/viewpage.action?pageId=58723827&preview=/5...> ,[1] the Jurisdiction subgroup is addressing jurisdiction*-related questions, including how choice of jurisdiction and applicable laws for dispute settlement impact ICANN's accountability and the actual operation of policies.
To help the subgroup in these endeavors we are asking you to consider and respond to the following specific questions. In this regard, the subgroup is asking for concrete, factual submissions (positive, negative, or neutral) that will help ensure that the subgroup’s deliberations are informed, fact-based, and address real issues. The subgroup is interested in all types of jurisdiction-related factual experiences, not just those involving actual disputes/court cases.
*QUESTION 1*
Has your business, your privacy or your ability to use or purchase domain name-related services been affected by ICANN's jurisdiction* in any way?
If the answer is Yes, please describe specific cases, situations or incidents, including the date, the parties involved, and links to any relevant documents. Please note that “affected” may refer to positive and/or negative effects.
*QUESTION 2*
Has ICANN's jurisdiction* affected any dispute resolution process or litigation related to domain names you have been involved in?
If the answer is Yes, please describe specific cases, situations or incidents, including the date, the parties involved, and links to any relevant documents. Please note that “affected” may refer to positive and/or negative effects.
*QUESTION 3*
Do you have copies of and/or links to any verifiable reports of experiences of other parties that would be responsive to the questions above?
If the answer is yes, please provide these copies and/or links. Please provide either first-person accounts or reliable third-party accounts such as news reports; please do not provide your own version of events.
------------------------------
[1] *See* CCWG-Accountability Main Report, paragraphs 6 and 234, and Annex 12, paragraphs 25-31.
* For this Questionnaire, “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.
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
Stating “ICANN being subject to U.S. and California law as a result of its incorporation and location in California” is not evidence of bias, merely acceptance of current reality. 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 Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey From: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Kavouss Arasteh Sent: Saturday, January 07, 2017 6:18 PM To: McAuley, David Cc: ws2-jurisdiction@icann.org Subject: Re: [Ws2-jurisdiction] Jurisdiction Questionnaire: RESPONSE REQUESTED Greg Thank you very much for your effort David I strongle disagree with youp instance not to have question 4 Either ALL questions or NO questions Greg I also strongly DISAGREE WITH YOUR COMENTS Quote * For this Questionnaire, “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. Unquote Your suggestions advocate a bias to the respondents. Please tell me Who answer to the questions Mainly privâtes sector with all its ability, power, coordination and mobilization Please kindly revise the Astérix part to be neutral in saying that Do you believe that ,to be neutral and impartial *any choice of law” or venue provisions in agreements with the parties concerned. AND NOT IN AGREEMENT WITH ICANN since I do not believe we should talk about agreement with ICANN . Why ICANN. AGREEMENT ON THE CHOICE OF LAW should be left to the parties concerned. Regards Kavouss 2017-01-07 22:55 GMT+01:00 McAuley, David <dmcauley@verisign.com<mailto:dmcauley@verisign.com>>: In my personal opinion we are wandering blindly into unwise, unacceptable territory – very possibly inviting a quagmire of suppositions and opinions that would pose the near certainty of derailing our work. We should not let the perfect be the enemy of the good, but I am unconvinced that the questionnaire as currently proposed could actually lead to a “good” outcome so I don’t see the good at peril here. If we conclude that a questionnaire must go out then I support questions 1-3 as widely supported in the survey we did – with no question 4. If any form of Q4 is to be included it must be fact-based, not opinion-based. Here is what I suggest as a compromise path to resolve the Q4 issue – basically one question in two parts: Are you aware of any material, documented instance(s) where ICANN has been unable to pursue its Mission because of its jurisdiction? If so, please provide documentation. Are you aware of and able to document the existence of an alternative jurisdiction where ICANN would not be so prevented from pursuing its Mission? If so, please provide documentation. Such a questionnaire could of course lead to a full-scale legal due-diligence exercise for suggested alternatives as we recently did with respect to California in Work Stream One (because we would need a demonstration that any such alternative, while possibly solving one perceived problem, did not allow others). Current jurisdiction has worked well for nineteen years and we just finished reorganizing things at great expense to better fit within California with enforceable Empowered Community powers. Is WS2 to change that? I think we have a different mission than that to accomplish by June. Our mission is essentially to look at settlement of dispute jurisdiction issues and right now that seems like plenty to try to get done by June. That Q4 is still under consideration, after failing to gain a clear consensus and even getting substantially less support than question 5 (which basically asked if Q’s 1-3 should go out if Q4 was rejected), is puzzling. How can we release Q4 in these circumstances? This is too important to “wing it and let’s see what happens.” We don’t do survey questions for a living. Don’t we at least need to guarantee that our questions stay within ICANN’s mission and call for answers to do the same? Mathieu, as I recall, said in chat that respondents often go beyond the bounds of what is asked – that tendency itself seems enough to delete Question 4 at the very least. We should just look at the jurisdiction of contracts and dispute settlements, as paragraph 06 of the Final Report puts it. Finally, the questionnaire is sensitive enough that we will likely encounter the same debate when we run it by the full CCWG. David David McAuley International Policy Manager Verisign Inc. 703-948-4154<tel:(703)%20948-4154> From: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org>] On Behalf Of Greg Shatan Sent: Saturday, January 07, 2017 1:23 PM To: ws2-jurisdiction Subject: [EXTERNAL] [Ws2-jurisdiction] Jurisdiction Questionnaire: RESPONSE REQUESTED All, We made some good progress on our call on Friday, January 6. Following a wide-ranging discussion, we were able to make some headway on refining the draft questionnaire. I encourage those who missed the call to review the recording and notes. Specifically, we came to a preliminary conclusion on revising the Preamble and Question 1, subject to comment on this list and a final discussion on our next call (Tuesday, January 10 at 13:00). Question 2 had no revisions suggested, and Question 3 had only one revision suggested. The Preamble and Questions 1, 2 and 3 (with the proposed revision in "track changes") are in the first document below (Word and PDF documents) and also in text below. Please review this version of the Preamble and Questions 1-3 and provide support (or lack of support) and/or comments for this portion. We also discussed several aspects of Question 4, including the purpose of the question; whether the question is different in nature from Questions 1-3; whether or not the question should be included in this questionnaire, a subsequent questionnaire or not at all; the types of responses desired (and the types expected); and the drafting of the question itself. With these topics and seven drafting alternatives (and the ability to pick and choose elements of those alternatives), this required more time than we had left on the call. Therefore, we did not come to any preliminary conclusions on Question 4. The drafting alternatives for Question 4 (including the current version) are in the second draft document (Word and PDF). Please look at the alternatives carefully, particularly if you have not supported sending question 4 in its current form. Please review the options for Question 4 and respond, indicating (a) Which version(s) of Question 4 you could support and which you would object to, and (b) If the answer to (a) is "none," how you would change or combine one or more alternatives in order to support it. We will conclude this discussion on our call of January 10, so please provide your thoughts and responses before then. Thank you. Greg VERSION OF PREAMBLE AND QUESTIONS 1-3 FOR REVIEW PREAMBLE The newly-adopted ICANN bylaws created several Work Stream 2 accountability subgroups. One of them, the subgroup on Jurisdiction, is posing the questions below for community input into the subgroup’s deliberations. As directed by Bylaw Article 27, Section 27.1(b)(vi)<https://www.icann.org/resources/pages/governance/bylaws-en/#article27> and to the extent set forth in the CCWG-Accountability Final Report<https://community.icann.org/pages/viewpage.action?pageId=58723827&preview=/58723827/58726532/Main%20Report%20-%20FINAL-Revised.pdf>,[1] the Jurisdiction subgroup is addressing jurisdiction*-related questions, including how choice of jurisdiction and applicable laws for dispute settlement impact ICANN's accountability and the actual operation of policies. To help the subgroup in these endeavors we are asking you to consider and respond to the following specific questions. In this regard, the subgroup is asking for concrete, factual submissions (positive, negative, or neutral) that will help ensure that the subgroup’s deliberations are informed, fact-based, and address real issues. The subgroup is interested in all types of jurisdiction-related factual experiences, not just those involving actual disputes/court cases. QUESTION 1 Has your business, your privacy or your ability to use or purchase domain name-related services been affected by ICANN's jurisdiction* in any way? If the answer is Yes, please describe specific cases, situations or incidents, including the date, the parties involved, and links to any relevant documents. Please note that “affected” may refer to positive and/or negative effects. QUESTION 2 Has ICANN's jurisdiction* affected any dispute resolution process or litigation related to domain names you have been involved in? If the answer is Yes, please describe specific cases, situations or incidents, including the date, the parties involved, and links to any relevant documents. Please note that “affected” may refer to positive and/or negative effects. QUESTION 3 Do you have copies of and/or links to any verifiable reports of experiences of other parties that would be responsive to the questions above? If the answer is yes, please provide these copies and/or links. Please provide either first-person accounts or reliable third-party accounts such as news reports; please do not provide your own version of events. ________________________________ [1] See CCWG-Accountability Main Report, paragraphs 6 and 234, and Annex 12, paragraphs 25-31. * For this Questionnaire, “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. _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction ________________________________ No virus found in this message. Checked by AVG - www.avg.com<http://www.avg.com/email-signature> Version: 2016.0.7996 / Virus Database: 4749/13706 - Release Date: 01/04/17
Kavouss, Please help me understand your objection to the footnote (which has been in the proposal for quite some time). It is an accurate description of "ICANN's jurisdiction" as it currently exists. It is a condensed version of the "Multiple Layers of Jurisdiction" which we have already discussed at length. Each of the questions in the Questionnaire is asking about ICANN's jurisdiction as it currently exists. The references to "ICANN's jurisdiction" in each question is not a reference to any hypothetical jurisdiction, it is a reference to the facts. I don't see how this biases any response. It's critical that all respondents have a common understanding of what "ICANN's jurisdiction" is; otherwise, the responses will be useless. To respond to your specific concern, when we are talking about "ICANN's jurisdiction" in the context of agreements, we are only talking about agreements to which ICANN is a party. If neither of the "parties concerned" is ICANN, then we are no longer talking about "ICANN's jurisdiction." As to who will answer the questions, my first response is that there is no way to know, and any answer is merely idle speculation. I don't think there is any basis in fact to assert that the "private sector" (which covers a number of different types of stakeholders) has a superior position with regard to "ability, power, coordination and mobilization," over e.g., governments or civil society. This is merely a stereotype. I have long observed that there are often stereotypes that each group at ICANN holds about other groups. As you make your way around ICANN, you will eventually learn the stereotyped view that each group holds about each other group (including your own group), and you will also eventually learn that their stereotyped views of your group are just as flawed and unhelpful as the stereotyped views your own group holds about other groups. The sooner we stop indulging in stereotypes, the better. My second response is that I expect a broad set of responses from all sectors. Best regards, Greg On Sat, Jan 7, 2017 at 6:18 PM, Kavouss Arasteh <kavouss.arasteh@gmail.com> wrote:
Greg Thank you very much for your effort David I strongle disagree with youp instance not to have question 4 Either ALL questions or NO questions Greg I also strongly DISAGREE WITH YOUR COMENTS Quote * For this Questionnaire, “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*. Unquote Your suggestions advocate a bias to the respondents. Please tell me Who answer to the questions Mainly privâtes sector with all its ability, power, coordination and mobilization Please kindly revise the Astérix part to be neutral in saying that Do you believe that ,to be neutral and impartial **any choice of law” or venue provisions in agreements with the parties concerned. AND NOT IN AGREEMENT WITH ICANN since I do not believe we should talk about agreement with ICANN . Why ICANN.* *AGREEMENT ON THE CHOICE OF LAW should be left to the parties concerned.* *Regards* *Kavouss *
2017-01-07 22:55 GMT+01:00 McAuley, David <dmcauley@verisign.com>:
In my personal opinion we are wandering blindly into unwise, unacceptable territory – very possibly inviting a quagmire of suppositions and opinions that would pose the near certainty of derailing our work.
We should not let the perfect be the enemy of the good, but I am unconvinced that the questionnaire as currently proposed could actually lead to a “good” outcome so I don’t see the good at peril here.
If we conclude that a questionnaire must go out then I support questions 1-3 as widely supported in the survey we did – with no question 4.
If any form of Q4 is to be included it must be fact-based, not opinion-based. Here is what I suggest as a compromise path to resolve the Q4 issue – basically one question in two parts:
*Are you aware of any material, documented instance(s) where ICANN has been unable to pursue its Mission because of its jurisdiction? If so, please provide documentation.*
*Are you aware of and able to document the existence of an alternative jurisdiction where ICANN would not be so prevented from pursuing its Mission? If so, please provide documentation. *
Such a questionnaire could of course lead to a full-scale legal due-diligence exercise for suggested alternatives as we recently did with respect to California in Work Stream One (because we would need a demonstration that any such alternative, while possibly solving one perceived problem, did not allow others).
Current jurisdiction has worked well for nineteen years and we just finished reorganizing things at great expense to better fit within California with enforceable Empowered Community powers. Is WS2 to change that?
I think we have a different mission than that to accomplish by June. Our mission is essentially to look at settlement of dispute jurisdiction issues and right now that seems like plenty to try to get done by June.
That Q4 is still under consideration, after failing to gain a clear consensus and even getting substantially less support than question 5 (which basically asked if Q’s 1-3 should go out if Q4 was rejected), is puzzling. How can we release Q4 in these circumstances?
This is too important to “wing it and let’s see what happens.” We don’t do survey questions for a living. Don’t we at least need to guarantee that our questions stay within ICANN’s mission and call for answers to do the same? Mathieu, as I recall, said in chat that respondents often go beyond the bounds of what is asked – that tendency itself seems enough to delete Question 4 at the very least.
We should just look at the jurisdiction of contracts and dispute settlements, as paragraph 06 of the Final Report puts it.
Finally, the questionnaire is sensitive enough that we will likely encounter the same debate when we run it by the full CCWG.
David
David McAuley
International Policy Manager
Verisign Inc.
703-948-4154 <(703)%20948-4154>
*From:* ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounc es@icann.org] *On Behalf Of *Greg Shatan *Sent:* Saturday, January 07, 2017 1:23 PM *To:* ws2-jurisdiction *Subject:* [EXTERNAL] [Ws2-jurisdiction] Jurisdiction Questionnaire: RESPONSE REQUESTED
All,
We made some good progress on our call on Friday, January 6. Following a wide-ranging discussion, we were able to make some headway on refining the draft questionnaire. I encourage those who missed the call to review the recording and notes.
Specifically, we came to a preliminary conclusion on revising the Preamble and Question 1, subject to comment on this list and a final discussion on our next call (Tuesday, January 10 at 13:00). Question 2 had no revisions suggested, and Question 3 had only one revision suggested.
The Preamble and Questions 1, 2 and 3 (with the proposed revision in "track changes") are in the first document below (Word and PDF documents) and also in text below. *Please review this version of the Preamble and Questions 1-3 and provide support (or lack of support) and/or comments for this portion.*
We also discussed several aspects of Question 4, including the purpose of the question; whether the question is different in nature from Questions 1-3; whether or not the question should be included in this questionnaire, a subsequent questionnaire or not at all; the types of responses desired (and the types expected); and the drafting of the question itself. With these topics and seven drafting alternatives (and the ability to pick and choose elements of those alternatives), this required more time than we had left on the call. Therefore, we did not come to any preliminary conclusions on Question 4.
The drafting alternatives for Question 4 (including the current version) are in the second draft document (Word and PDF). Please look at the alternatives carefully, particularly if you have not supported sending question 4 in its current form. * Please review the options for Question 4 and respond, indicating (a) Which version(s) of Question 4 you could support and which you would object to, and (b) If the answer to (a) is "none," how you would change or combine one or more alternatives in order to support it.*
We will conclude this discussion on our call of January 10, so please provide your thoughts and responses before then. Thank you.
Greg
*VERSION OF PREAMBLE AND QUESTIONS 1-3 FOR REVIEW*
*PREAMBLE*
The newly-adopted ICANN bylaws created several Work Stream 2 accountability subgroups. One of them, the subgroup on Jurisdiction, is posing the questions below for community input into the subgroup’s deliberations.
As directed by Bylaw Article 27, Section 27.1(b)(vi) <https://www.icann.org/resources/pages/governance/bylaws-en/#article27> and to the extent set forth in the CCWG-Accountability Final Report <https://community.icann.org/pages/viewpage.action?pageId=58723827&preview=/5...> ,[1] the Jurisdiction subgroup is addressing jurisdiction*-related questions, including how choice of jurisdiction and applicable laws for dispute settlement impact ICANN's accountability and the actual operation of policies.
To help the subgroup in these endeavors we are asking you to consider and respond to the following specific questions. In this regard, the subgroup is asking for concrete, factual submissions (positive, negative, or neutral) that will help ensure that the subgroup’s deliberations are informed, fact-based, and address real issues. The subgroup is interested in all types of jurisdiction-related factual experiences, not just those involving actual disputes/court cases.
*QUESTION 1*
Has your business, your privacy or your ability to use or purchase domain name-related services been affected by ICANN's jurisdiction* in any way?
If the answer is Yes, please describe specific cases, situations or incidents, including the date, the parties involved, and links to any relevant documents. Please note that “affected” may refer to positive and/or negative effects.
*QUESTION 2*
Has ICANN's jurisdiction* affected any dispute resolution process or litigation related to domain names you have been involved in?
If the answer is Yes, please describe specific cases, situations or incidents, including the date, the parties involved, and links to any relevant documents. Please note that “affected” may refer to positive and/or negative effects.
*QUESTION 3*
Do you have copies of and/or links to any verifiable reports of experiences of other parties that would be responsive to the questions above?
If the answer is yes, please provide these copies and/or links. Please provide either first-person accounts or reliable third-party accounts such as news reports; please do not provide your own version of events.
------------------------------
[1] *See* CCWG-Accountability Main Report, paragraphs 6 and 234, and Annex 12, paragraphs 25-31.
* For this Questionnaire, “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.
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
David, pl see some responses inline. On Sunday 08 January 2017 03:25 AM, McAuley, David wrote:
In my personal opinion we are wandering blindly into unwise, unacceptable territory – very possibly inviting a quagmire of suppositions and opinions that would pose the near certainty of derailing our work.
We should not let the perfect be the enemy of the good, but I am unconvinced that the questionnaire as currently proposed could actually lead to a “good” outcome so I don’t see the good at peril here.
If we conclude that a questionnaire must go out then I support questions 1-3 as widely supported in the survey we did – with no question 4.
If any form of Q4 is to be included it must be fact-based, not opinion-based. Here is what I suggest as a compromise path to resolve the Q4 issue – basically one question in two parts:
/ /
/Are you aware of any material, documented instance(s) where ICANN has been unable to pursue its Mission because of its jurisdiction? If so, please provide documentation./
/ /
/Are you aware of and able to document the existence of an alternative jurisdiction where ICANN would not be so prevented from pursuing its Mission? If so, please provide documentation. /
When we proposed release from NTIA's oversight and replacement of it by a new community accountability mechanism, did we do it on the basis of (1) documented instances where ICANN was unable to pursue its mission because of its direct oversight by NTIA. (2) documented existence of alternative oversight mechanisms that could replace NTIA oversight, and not prevent ICANN from pursuing its mission ? At least I am not aware of any such background, but you may want to refresh my memory. If not, why does one kind of institutional change involving ICANN - transiting from direct organisational oversight by a dept of US gov - does not require such documented proofs, as mentioned above, but another kind - possible transiting from the jurisdictional oversight of US gov - requires these documented proof? Do you have a logic for this? Till about 3 years ago, before Snowden precipitated certain events, one heard the same arguments about why nothing is wrong with NTIA oversight, whenever some of us protested against it. We were asked to show demonstrated evidence etc etc of how it has interfered with ICANN's mission/ policies etc, and our objections pooh poohed. And then suddenly when US gov itself thought it useful to let go of NTIA oversight, everything changes, and it begun to seem that nothing could be more worthwhile a thing then to transit from NTIA oversight (mind it: without any production of any new of old documents proofs about above said things) Is it just because one kind of change has been favoured by the 'ICANN insider community' and another isnt? Or do we have to always to just wait for signals from that all-powerful US gov, to "know" what is good for the global Internet and what not? I take part in this current process as it purports to represent the interests of the global public, and not of the "insider ICANN community". Hope we can keep working in the global public interest, and always take that as the beacon that leads us. If we are to agree that something is in global public interest, we will recommend it. It is not for us to decide what ICANN or US gov likes it or not. parminder
//
Such a questionnaire could of course lead to a full-scale legal due-diligence exercise for suggested alternatives as we recently did with respect to California in Work Stream One (because we would need a demonstration that any such alternative, while possibly solving one perceived problem, did not allow others).
Current jurisdiction has worked well for nineteen years and we just finished reorganizing things at great expense to better fit within California with enforceable Empowered Community powers. Is WS2 to change that?
I think we have a different mission than that to accomplish by June. Our mission is essentially to look at settlement of dispute jurisdiction issues and right now that seems like plenty to try to get done by June.
That Q4 is still under consideration, after failing to gain a clear consensus and even getting substantially less support than question 5 (which basically asked if Q’s 1-3 should go out if Q4 was rejected), is puzzling. How can we release Q4 in these circumstances?
This is too important to “wing it and let’s see what happens.” We don’t do survey questions for a living. Don’t we at least need to guarantee that our questions stay within ICANN’s mission and call for answers to do the same? Mathieu, as I recall, said in chat that respondents often go beyond the bounds of what is asked – that tendency itself seems enough to delete Question 4 at the very least.
We should just look at the jurisdiction of contracts and dispute settlements, as paragraph 06 of the Final Report puts it.
Finally, the questionnaire is sensitive enough that we will likely encounter the same debate when we run it by the full CCWG.
David
David McAuley
International Policy Manager
Verisign Inc.
703-948-4154
*From:*ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] *On Behalf Of *Greg Shatan *Sent:* Saturday, January 07, 2017 1:23 PM *To:* ws2-jurisdiction *Subject:* [EXTERNAL] [Ws2-jurisdiction] Jurisdiction Questionnaire: RESPONSE REQUESTED
All,
We made some good progress on our call on Friday, January 6. Following a wide-ranging discussion, we were able to make some headway on refining the draft questionnaire. I encourage those who missed the call to review the recording and notes.
Specifically, we came to a preliminary conclusion on revising the Preamble and Question 1, subject to comment on this list and a final discussion on our next call (Tuesday, January 10 at 13:00). Question 2 had no revisions suggested, and Question 3 had only one revision suggested.
The Preamble and Questions 1, 2 and 3 (with the proposed revision in "track changes") are in the first document below (Word and PDF documents) and also in text below. *Please review this version of the Preamble and Questions 1-3 and provide support (or lack of support) and/or comments for this portion.*
We also discussed several aspects of Question 4, including the purpose of the question; whether the question is different in nature from Questions 1-3; whether or not the question should be included in this questionnaire, a subsequent questionnaire or not at all; the types of responses desired (and the types expected); and the drafting of the question itself. With these topics and seven drafting alternatives (and the ability to pick and choose elements of those alternatives), this required more time than we had left on the call. Therefore, we did not come to any preliminary conclusions on Question 4.
The drafting alternatives for Question 4 (including the current version) are in the second draft document (Word and PDF). Please look at the alternatives carefully, particularly if you have not supported sending question 4 in its current form. * Please review the options for Question 4 and respond, indicating (a) Which version(s) of Question 4 you could support and which you would object to, and (b) If the answer to (a) is "none," how you would change or combine one or more alternatives in order to support it.*
We will conclude this discussion on our call of January 10, so please provide your thoughts and responses before then. Thank you.
Greg
*VERSION OF PREAMBLE AND QUESTIONS 1-3 FOR REVIEW*
*PREAMBLE*
The newly-adopted ICANN bylaws created several Work Stream 2 accountability subgroups. One of them, the subgroup on Jurisdiction, is posing the questions below for community input into the subgroup’s deliberations.
As directed by Bylaw Article 27, Section 27.1(b)(vi) <https://www.icann.org/resources/pages/governance/bylaws-en/#article27> and to the extent set forth in the CCWG-Accountability Final Report <https://community.icann.org/pages/viewpage.action?pageId=58723827&preview=/58723827/58726532/Main%20Report%20-%20FINAL-Revised.pdf>,[1] the Jurisdiction subgroup is addressing jurisdiction*-related questions, including how choice of jurisdiction and applicable laws for dispute settlement impact ICANN's accountability and the actual operation of policies.
To help the subgroup in these endeavors we are asking you to consider and respond to the following specific questions. In this regard, the subgroup is asking for concrete, factual submissions (positive, negative, or neutral) that will help ensure that the subgroup’s deliberations are informed, fact-based, and address real issues. The subgroup is interested in all types of jurisdiction-related factual experiences, not just those involving actual disputes/court cases.
*QUESTION 1*
Has your business, your privacy or your ability to use or purchase domain name-related services been affected by ICANN's jurisdiction* in any way?
If the answer is Yes, please describe specific cases, situations or incidents, including the date, the parties involved, and links to any relevant documents. Please note that “affected” may refer to positive and/or negative effects.
*QUESTION 2*
Has ICANN's jurisdiction* affected any dispute resolution process or litigation related to domain names you have been involved in?
If the answer is Yes, please describe specific cases, situations or incidents, including the date, the parties involved, and links to any relevant documents. Please note that “affected” may refer to positive and/or negative effects.
*QUESTION 3*
Do you have copies of and/or links to any verifiable reports of experiences of other parties that would be responsive to the questions above?
If the answer is yes, please provide these copies and/or links. Please provide either first-person accounts or reliable third-party accounts such as news reports; please do not provide your own version of events.
------------------------------------------------------------------------
[1]_See_ CCWG-Accountability Main Report, paragraphs 6 and 234, and Annex 12, paragraphs 25-31.
* For this Questionnaire, “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.
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
David, all I am similarly concerned. Please see inline On 07/01/2017 21:55, McAuley, David wrote:
In my personal opinion we are wandering blindly into unwise, unacceptable territory – very possibly inviting a quagmire of suppositions and opinions that would pose the near certainty of derailing our work.
Agreed and I have a related concern. As far as I am aware we have not defined nor agreed what purpose/end the results of the questionnaire would be put. And how we would deal with the results, what weight the results would be given in determining our direction or way forward, or more importantly, any "findings" of the group (although I am a little at a loss to think how we might agree them). Given the lackluster support for the various alternatives on the last call I am concerned that there seems to be little support, or an acceptable level of comfort, for this approach as a whole.
We should not let the perfect be the enemy of the good, but I am unconvinced that the questionnaire as currently proposed could actually lead to a “good” outcome so I don’t see the good at peril here.
If we conclude that a questionnaire must go out then I support questions 1-3 as widely supported in the survey we did – with no question 4.
This would be my preference as well, especially as some of the alternate versions for Q4 seems to go far beyond the relatively limited mandate of this group.
If any form of Q4 is to be included it must be fact-based, not opinion-based. Here is what I suggest as a compromise path to resolve the Q4 issue – basically one question in two parts:
//
/Are you aware of any material, documented instance(s) where ICANN has been unable to pursue its Mission because of its jurisdiction? If so, please provide documentation./
//
/Are you aware of and able to document the existence of an alternative jurisdiction where ICANN would not be so prevented from pursuing its Mission? If so, please provide documentation./
Such a questionnaire could of course lead to a full-scale legal due-diligence exercise for suggested alternatives as we recently did with respect to California in Work Stream One (because we would need a demonstration that any such alternative, while possibly solving one perceived problem, did not allow others).
Current jurisdiction has worked well for nineteen years and we just finished reorganizing things at great expense to better fit within California with enforceable Empowered Community powers. Is WS2 to change that?
That is clearly not this group's mandate.
I think we have a different mission than that to accomplish by June. Our mission is essentially to look at settlement of dispute jurisdiction issues and right now that seems like plenty to try to get done by June.
Agreed.
That Q4 is still under consideration, after failing to gain a clear consensus and even getting substantially less support than question 5 (which basically asked if Q’s 1-3 should go out if Q4 was rejected), is puzzling. How can we release Q4 in these circumstances?
This is too important to “wing it and let’s see what happens.” We don’t do survey questions for a living. Don’t we at least need to guarantee that our questions stay within ICANN’s mission and call for answers to do the same? Mathieu, as I recall, said in chat that respondents often go beyond the bounds of what is asked – that tendency itself seems enough to delete Question 4 at the very least.
We should just look at the jurisdiction of contracts and dispute settlements, as paragraph 06 of the Final Report puts it.
A reasonable place to "restart" our work, I would suggest.
Finally, the questionnaire is sensitive enough that we will likely encounter the same debate when we run it by the full CCWG.
Most likely. Matthew
David
David McAuley
International Policy Manager
Verisign Inc.
703-948-4154
*From:*ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] *On Behalf Of *Greg Shatan *Sent:* Saturday, January 07, 2017 1:23 PM *To:* ws2-jurisdiction *Subject:* [EXTERNAL] [Ws2-jurisdiction] Jurisdiction Questionnaire: RESPONSE REQUESTED
All,
We made some good progress on our call on Friday, January 6. Following a wide-ranging discussion, we were able to make some headway on refining the draft questionnaire. I encourage those who missed the call to review the recording and notes.
Specifically, we came to a preliminary conclusion on revising the Preamble and Question 1, subject to comment on this list and a final discussion on our next call (Tuesday, January 10 at 13:00). Question 2 had no revisions suggested, and Question 3 had only one revision suggested.
The Preamble and Questions 1, 2 and 3 (with the proposed revision in "track changes") are in the first document below (Word and PDF documents) and also in text below. *Please review this version of the Preamble and Questions 1-3 and provide support (or lack of support) and/or comments for this portion.*
We also discussed several aspects of Question 4, including the purpose of the question; whether the question is different in nature from Questions 1-3; whether or not the question should be included in this questionnaire, a subsequent questionnaire or not at all; the types of responses desired (and the types expected); and the drafting of the question itself. With these topics and seven drafting alternatives (and the ability to pick and choose elements of those alternatives), this required more time than we had left on the call. Therefore, we did not come to any preliminary conclusions on Question 4.
The drafting alternatives for Question 4 (including the current version) are in the second draft document (Word and PDF). Please look at the alternatives carefully, particularly if you have not supported sending question 4 in its current form. * Please review the options for Question 4 and respond, indicating (a) Which version(s) of Question 4 you could support and which you would object to, and (b) If the answer to (a) is "none," how you would change or combine one or more alternatives in order to support it.*
We will conclude this discussion on our call of January 10, so please provide your thoughts and responses before then. Thank you.
Greg
*VERSION OF PREAMBLE AND QUESTIONS 1-3 FOR REVIEW*
*PREAMBLE*
The newly-adopted ICANN bylaws created several Work Stream 2 accountability subgroups. One of them, the subgroup on Jurisdiction, is posing the questions below for community input into the subgroup’s deliberations.
As directed by Bylaw Article 27, Section 27.1(b)(vi) <https://www.icann.org/resources/pages/governance/bylaws-en/#article27> and to the extent set forth in the CCWG-Accountability Final Report <https://community.icann.org/pages/viewpage.action?pageId=58723827&preview=/58723827/58726532/Main%20Report%20-%20FINAL-Revised.pdf>,[1] the Jurisdiction subgroup is addressing jurisdiction*-related questions, including how choice of jurisdiction and applicable laws for dispute settlement impact ICANN's accountability and the actual operation of policies.
To help the subgroup in these endeavors we are asking you to consider and respond to the following specific questions. In this regard, the subgroup is asking for concrete, factual submissions (positive, negative, or neutral) that will help ensure that the subgroup’s deliberations are informed, fact-based, and address real issues. The subgroup is interested in all types of jurisdiction-related factual experiences, not just those involving actual disputes/court cases.
*QUESTION 1*
Has your business, your privacy or your ability to use or purchase domain name-related services been affected by ICANN's jurisdiction* in any way?
If the answer is Yes, please describe specific cases, situations or incidents, including the date, the parties involved, and links to any relevant documents. Please note that “affected” may refer to positive and/or negative effects.
*QUESTION 2*
Has ICANN's jurisdiction* affected any dispute resolution process or litigation related to domain names you have been involved in?
If the answer is Yes, please describe specific cases, situations or incidents, including the date, the parties involved, and links to any relevant documents. Please note that “affected” may refer to positive and/or negative effects.
*QUESTION 3*
Do you have copies of and/or links to any verifiable reports of experiences of other parties that would be responsive to the questions above?
If the answer is yes, please provide these copies and/or links.Please provide either first-person accounts or reliable third-party accounts such as news reports; please do not provide your own version of events.
------------------------------------------------------------------------
[1]_See_ CCWG-Accountability Main Report, paragraphs 6 and 234, and Annex 12, paragraphs 25-31.
* For this Questionnaire, “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.
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
-- ------------ Matthew Shears Global Internet Policy and Human Rights Center for Democracy & Technology (CDT) + 44 771 2472987
Hello Just to clarify first: I am in total agreement that ICANN should remain incorporated in the US. I have no intention to fight the imperialist windmills. While I agree that current ICANN's jurisdiction has worked for 19 years, I think we need to add that it has worked well for the majority. For the minority, it has caused trouble occasionally which can be fixed by providing some solutions and it does not have to change ICANN's jurisdiction. I am still researching about this and need more evidence but can give you a couple of examples: 1. ICANN is under no obligation to get an OFAC license for registrars applicants who reside in sanctioned countries. Refer to: https://www.icann.org/resources/pages/application-2012-02-25-en "Applicant acknowledges that ICANN must comply with all U.S. laws, rules, and regulations. One such set of regulations is the economic and trade sanctions program administered by the Office of Foreign Assets Control ("OFAC") of the U.S. Department of the Treasury. These sanctions have been imposed on certain countries, as well as individuals and entities that appear on OFAC's List of Specially Designated Nationals and Blocked Persons (the "SDN List"). ICANN is prohibited from providing most goods or services to residents of sanctioned countries or their governmental entities or to SDNs without an applicable U.S. government authorization or exemption. ICANN generally will not seek a license to provide goods or services to an individual or entity on the SDN List. In the past, when ICANNhas been requested to provide services to individuals or entities that are not SDNs, but are residents of sanctioned countries, ICANN has sought and been granted licenses as required. However, Applicant acknowledges that ICANN is under no obligations to seek such licenses and, in any given case, OFAC could decide not to issue a requested license." 2. When an Iranian organizations wanted to join APRALO as an ALS (no application was submitted), we were informally advised that we might want to look into problems that OFAC arises for such application. That was a very informal advice probably from a not very well informed source. But we need to look into this. (anecdotal evidence, might have a very easy solution) 3. And the famous example of the Iranian ccTLD case. Which I have brought up on this list multiple times. What solutions do we have for preventing such cases happening in the future? Are we just going to hope that US courts will rule in favor of ICANN? This is not only an Iranian related issue. It also affects ordinary people in other countries who are on the sanctioned list. I don't know if providing recommendations for solving the issues I raised above is in the mandate of this group. All I aim for is to find effective solutions for problems similar to the ones I mentioned. Farzaneh On Sun, Jan 8, 2017 at 2:22 PM, matthew shears <mshears@cdt.org> wrote:
David, all
I am similarly concerned. Please see inline
On 07/01/2017 21:55, McAuley, David wrote:
In my personal opinion we are wandering blindly into unwise, unacceptable territory – very possibly inviting a quagmire of suppositions and opinions that would pose the near certainty of derailing our work.
Agreed and I have a related concern. As far as I am aware we have not defined nor agreed what purpose/end the results of the questionnaire would be put. And how we would deal with the results, what weight the results would be given in determining our direction or way forward, or more importantly, any "findings" of the group (although I am a little at a loss to think how we might agree them).
Given the lackluster support for the various alternatives on the last call I am concerned that there seems to be little support, or an acceptable level of comfort, for this approach as a whole.
We should not let the perfect be the enemy of the good, but I am unconvinced that the questionnaire as currently proposed could actually lead to a “good” outcome so I don’t see the good at peril here.
If we conclude that a questionnaire must go out then I support questions 1-3 as widely supported in the survey we did – with no question 4.
This would be my preference as well, especially as some of the alternate versions for Q4 seems to go far beyond the relatively limited mandate of this group.
If any form of Q4 is to be included it must be fact-based, not opinion-based. Here is what I suggest as a compromise path to resolve the Q4 issue – basically one question in two parts:
*Are you aware of any material, documented instance(s) where ICANN has been unable to pursue its Mission because of its jurisdiction? If so, please provide documentation.*
*Are you aware of and able to document the existence of an alternative jurisdiction where ICANN would not be so prevented from pursuing its Mission? If so, please provide documentation.*
Such a questionnaire could of course lead to a full-scale legal due-diligence exercise for suggested alternatives as we recently did with respect to California in Work Stream One (because we would need a demonstration that any such alternative, while possibly solving one perceived problem, did not allow others).
Current jurisdiction has worked well for nineteen years and we just finished reorganizing things at great expense to better fit within California with enforceable Empowered Community powers. Is WS2 to change that?
That is clearly not this group's mandate.
I think we have a different mission than that to accomplish by June. Our mission is essentially to look at settlement of dispute jurisdiction issues and right now that seems like plenty to try to get done by June.
Agreed.
That Q4 is still under consideration, after failing to gain a clear consensus and even getting substantially less support than question 5 (which basically asked if Q’s 1-3 should go out if Q4 was rejected), is puzzling. How can we release Q4 in these circumstances?
This is too important to “wing it and let’s see what happens.” We don’t do survey questions for a living. Don’t we at least need to guarantee that our questions stay within ICANN’s mission and call for answers to do the same? Mathieu, as I recall, said in chat that respondents often go beyond the bounds of what is asked – that tendency itself seems enough to delete Question 4 at the very least.
We should just look at the jurisdiction of contracts and dispute settlements, as paragraph 06 of the Final Report puts it.
A reasonable place to "restart" our work, I would suggest.
Finally, the questionnaire is sensitive enough that we will likely encounter the same debate when we run it by the full CCWG.
Most likely.
Matthew
David
David McAuley
International Policy Manager
Verisign Inc.
703-948-4154 <(703)%20948-4154>
*From:* ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction- bounces@icann.org <ws2-jurisdiction-bounces@icann.org>] *On Behalf Of *Greg Shatan *Sent:* Saturday, January 07, 2017 1:23 PM *To:* ws2-jurisdiction *Subject:* [EXTERNAL] [Ws2-jurisdiction] Jurisdiction Questionnaire: RESPONSE REQUESTED
All,
We made some good progress on our call on Friday, January 6. Following a wide-ranging discussion, we were able to make some headway on refining the draft questionnaire. I encourage those who missed the call to review the recording and notes.
Specifically, we came to a preliminary conclusion on revising the Preamble and Question 1, subject to comment on this list and a final discussion on our next call (Tuesday, January 10 at 13:00). Question 2 had no revisions suggested, and Question 3 had only one revision suggested.
The Preamble and Questions 1, 2 and 3 (with the proposed revision in "track changes") are in the first document below (Word and PDF documents) and also in text below. *Please review this version of the Preamble and Questions 1-3 and provide support (or lack of support) and/or comments for this portion.*
We also discussed several aspects of Question 4, including the purpose of the question; whether the question is different in nature from Questions 1-3; whether or not the question should be included in this questionnaire, a subsequent questionnaire or not at all; the types of responses desired (and the types expected); and the drafting of the question itself. With these topics and seven drafting alternatives (and the ability to pick and choose elements of those alternatives), this required more time than we had left on the call. Therefore, we did not come to any preliminary conclusions on Question 4.
The drafting alternatives for Question 4 (including the current version) are in the second draft document (Word and PDF). Please look at the alternatives carefully, particularly if you have not supported sending question 4 in its current form. * Please review the options for Question 4 and respond, indicating (a) Which version(s) of Question 4 you could support and which you would object to, and (b) If the answer to (a) is "none," how you would change or combine one or more alternatives in order to support it.*
We will conclude this discussion on our call of January 10, so please provide your thoughts and responses before then. Thank you.
Greg
*VERSION OF PREAMBLE AND QUESTIONS 1-3 FOR REVIEW*
*PREAMBLE*
The newly-adopted ICANN bylaws created several Work Stream 2 accountability subgroups. One of them, the subgroup on Jurisdiction, is posing the questions below for community input into the subgroup’s deliberations.
As directed by Bylaw Article 27, Section 27.1(b)(vi) <https://www.icann.org/resources/pages/governance/bylaws-en/#article27> and to the extent set forth in the CCWG-Accountability Final Report <https://community.icann.org/pages/viewpage.action?pageId=58723827&preview=/5...> ,[1] the Jurisdiction subgroup is addressing jurisdiction*-related questions, including how choice of jurisdiction and applicable laws for dispute settlement impact ICANN's accountability and the actual operation of policies.
To help the subgroup in these endeavors we are asking you to consider and respond to the following specific questions. In this regard, the subgroup is asking for concrete, factual submissions (positive, negative, or neutral) that will help ensure that the subgroup’s deliberations are informed, fact-based, and address real issues. The subgroup is interested in all types of jurisdiction-related factual experiences, not just those involving actual disputes/court cases.
*QUESTION 1*
Has your business, your privacy or your ability to use or purchase domain name-related services been affected by ICANN's jurisdiction* in any way?
If the answer is Yes, please describe specific cases, situations or incidents, including the date, the parties involved, and links to any relevant documents. Please note that “affected” may refer to positive and/or negative effects.
*QUESTION 2*
Has ICANN's jurisdiction* affected any dispute resolution process or litigation related to domain names you have been involved in?
If the answer is Yes, please describe specific cases, situations or incidents, including the date, the parties involved, and links to any relevant documents. Please note that “affected” may refer to positive and/or negative effects.
*QUESTION 3*
Do you have copies of and/or links to any verifiable reports of experiences of other parties that would be responsive to the questions above?
If the answer is yes, please provide these copies and/or links. Please provide either first-person accounts or reliable third-party accounts such as news reports; please do not provide your own version of events.
------------------------------
[1] *See* CCWG-Accountability Main Report, paragraphs 6 and 234, and Annex 12, paragraphs 25-31.
* For this Questionnaire, “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.
_______________________________________________ Ws2-jurisdiction mailing listWs2-jurisdiction@icann.orghttps://mm.icann.org/mailman/listinfo/ws2-jurisdiction
-- ------------ Matthew Shears Global Internet Policy and Human Rights Center for Democracy & Technology (CDT)+ 44 771 2472987 <+44%207712%20472987>
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
Thank you for a balanced and informative post. 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 Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey From: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of farzaneh badii Sent: Sunday, January 08, 2017 3:17 PM To: matthew shears Cc: ws2-jurisdiction@icann.org Subject: Re: [Ws2-jurisdiction] Jurisdiction Questionnaire: RESPONSE REQUESTED Hello Just to clarify first: I am in total agreement that ICANN should remain incorporated in the US. I have no intention to fight the imperialist windmills. While I agree that current ICANN's jurisdiction has worked for 19 years, I think we need to add that it has worked well for the majority. For the minority, it has caused trouble occasionally which can be fixed by providing some solutions and it does not have to change ICANN's jurisdiction. I am still researching about this and need more evidence but can give you a couple of examples: 1. ICANN is under no obligation to get an OFAC license for registrars applicants who reside in sanctioned countries. Refer to:https://www.icann.org/resources/pages/application-2012-02-25-en "Applicant acknowledges that ICANN must comply with all U.S. laws, rules, and regulations. One such set of regulations is the economic and trade sanctions program administered by the Office of Foreign Assets Control ("OFAC") of the U.S. Department of the Treasury. These sanctions have been imposed on certain countries, as well as individuals and entities that appear on OFAC's List of Specially Designated Nationals and Blocked Persons (the "SDN List"). ICANN is prohibited from providing most goods or services to residents of sanctioned countries or their governmental entities or to SDNs without an applicable U.S. government authorization or exemption. ICANN generally will not seek a license to provide goods or services to an individual or entity on the SDN List. In the past, when ICANNhas been requested to provide services to individuals or entities that are not SDNs, but are residents of sanctioned countries, ICANN has sought and been granted licenses as required. However, Applicant acknowledges that ICANN is under no obligations to seek such licenses and, in any given case, OFAC could decide not to issue a requested license." 2. When an Iranian organizations wanted to join APRALO as an ALS (no application was submitted), we were informally advised that we might want to look into problems that OFAC arises for such application. That was a very informal advice probably from a not very well informed source. But we need to look into this. (anecdotal evidence, might have a very easy solution) 3. And the famous example of the Iranian ccTLD case. Which I have brought up on this list multiple times. What solutions do we have for preventing such cases happening in the future? Are we just going to hope that US courts will rule in favor of ICANN? This is not only an Iranian related issue. It also affects ordinary people in other countries who are on the sanctioned list. I don't know if providing recommendations for solving the issues I raised above is in the mandate of this group. All I aim for is to find effective solutions for problems similar to the ones I mentioned. Farzaneh On Sun, Jan 8, 2017 at 2:22 PM, matthew shears <mshears@cdt.org<mailto:mshears@cdt.org>> wrote: David, all I am similarly concerned. Please see inline On 07/01/2017 21:55, McAuley, David wrote: In my personal opinion we are wandering blindly into unwise, unacceptable territory – very possibly inviting a quagmire of suppositions and opinions that would pose the near certainty of derailing our work. Agreed and I have a related concern. As far as I am aware we have not defined nor agreed what purpose/end the results of the questionnaire would be put. And how we would deal with the results, what weight the results would be given in determining our direction or way forward, or more importantly, any "findings" of the group (although I am a little at a loss to think how we might agree them). Given the lackluster support for the various alternatives on the last call I am concerned that there seems to be little support, or an acceptable level of comfort, for this approach as a whole. We should not let the perfect be the enemy of the good, but I am unconvinced that the questionnaire as currently proposed could actually lead to a “good” outcome so I don’t see the good at peril here. If we conclude that a questionnaire must go out then I support questions 1-3 as widely supported in the survey we did – with no question 4. This would be my preference as well, especially as some of the alternate versions for Q4 seems to go far beyond the relatively limited mandate of this group. If any form of Q4 is to be included it must be fact-based, not opinion-based. Here is what I suggest as a compromise path to resolve the Q4 issue – basically one question in two parts: Are you aware of any material, documented instance(s) where ICANN has been unable to pursue its Mission because of its jurisdiction? If so, please provide documentation. Are you aware of and able to document the existence of an alternative jurisdiction where ICANN would not be so prevented from pursuing its Mission? If so, please provide documentation. Such a questionnaire could of course lead to a full-scale legal due-diligence exercise for suggested alternatives as we recently did with respect to California in Work Stream One (because we would need a demonstration that any such alternative, while possibly solving one perceived problem, did not allow others). Current jurisdiction has worked well for nineteen years and we just finished reorganizing things at great expense to better fit within California with enforceable Empowered Community powers. Is WS2 to change that? That is clearly not this group's mandate. I think we have a different mission than that to accomplish by June. Our mission is essentially to look at settlement of dispute jurisdiction issues and right now that seems like plenty to try to get done by June. Agreed. That Q4 is still under consideration, after failing to gain a clear consensus and even getting substantially less support than question 5 (which basically asked if Q’s 1-3 should go out if Q4 was rejected), is puzzling. How can we release Q4 in these circumstances? This is too important to “wing it and let’s see what happens.” We don’t do survey questions for a living. Don’t we at least need to guarantee that our questions stay within ICANN’s mission and call for answers to do the same? Mathieu, as I recall, said in chat that respondents often go beyond the bounds of what is asked – that tendency itself seems enough to delete Question 4 at the very least. We should just look at the jurisdiction of contracts and dispute settlements, as paragraph 06 of the Final Report puts it. A reasonable place to "restart" our work, I would suggest. Finally, the questionnaire is sensitive enough that we will likely encounter the same debate when we run it by the full CCWG. Most likely. Matthew David David McAuley International Policy Manager Verisign Inc. 703-948-4154<tel:(703)%20948-4154> From: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Greg Shatan Sent: Saturday, January 07, 2017 1:23 PM To: ws2-jurisdiction Subject: [EXTERNAL] [Ws2-jurisdiction] Jurisdiction Questionnaire: RESPONSE REQUESTED All, We made some good progress on our call on Friday, January 6. Following a wide-ranging discussion, we were able to make some headway on refining the draft questionnaire. I encourage those who missed the call to review the recording and notes. Specifically, we came to a preliminary conclusion on revising the Preamble and Question 1, subject to comment on this list and a final discussion on our next call (Tuesday, January 10 at 13:00). Question 2 had no revisions suggested, and Question 3 had only one revision suggested. The Preamble and Questions 1, 2 and 3 (with the proposed revision in "track changes") are in the first document below (Word and PDF documents) and also in text below. Please review this version of the Preamble and Questions 1-3 and provide support (or lack of support) and/or comments for this portion. We also discussed several aspects of Question 4, including the purpose of the question; whether the question is different in nature from Questions 1-3; whether or not the question should be included in this questionnaire, a subsequent questionnaire or not at all; the types of responses desired (and the types expected); and the drafting of the question itself. With these topics and seven drafting alternatives (and the ability to pick and choose elements of those alternatives), this required more time than we had left on the call. Therefore, we did not come to any preliminary conclusions on Question 4. The drafting alternatives for Question 4 (including the current version) are in the second draft document (Word and PDF). Please look at the alternatives carefully, particularly if you have not supported sending question 4 in its current form. Please review the options for Question 4 and respond, indicating (a) Which version(s) of Question 4 you could support and which you would object to, and (b) If the answer to (a) is "none," how you would change or combine one or more alternatives in order to support it. We will conclude this discussion on our call of January 10, so please provide your thoughts and responses before then. Thank you. Greg VERSION OF PREAMBLE AND QUESTIONS 1-3 FOR REVIEW PREAMBLE The newly-adopted ICANN bylaws created several Work Stream 2 accountability subgroups. One of them, the subgroup on Jurisdiction, is posing the questions below for community input into the subgroup’s deliberations. As directed by Bylaw Article 27, Section 27.1(b)(vi)<https://www.icann.org/resources/pages/governance/bylaws-en/#article27> and to the extent set forth in the CCWG-Accountability Final Report<https://community.icann.org/pages/viewpage.action?pageId=58723827&preview=/58723827/58726532/Main%20Report%20-%20FINAL-Revised.pdf>,[1] the Jurisdiction subgroup is addressing jurisdiction*-related questions, including how choice of jurisdiction and applicable laws for dispute settlement impact ICANN's accountability and the actual operation of policies. To help the subgroup in these endeavors we are asking you to consider and respond to the following specific questions. In this regard, the subgroup is asking for concrete, factual submissions (positive, negative, or neutral) that will help ensure that the subgroup’s deliberations are informed, fact-based, and address real issues. The subgroup is interested in all types of jurisdiction-related factual experiences, not just those involving actual disputes/court cases. QUESTION 1 Has your business, your privacy or your ability to use or purchase domain name-related services been affected by ICANN's jurisdiction* in any way? If the answer is Yes, please describe specific cases, situations or incidents, including the date, the parties involved, and links to any relevant documents. Please note that “affected” may refer to positive and/or negative effects. QUESTION 2 Has ICANN's jurisdiction* affected any dispute resolution process or litigation related to domain names you have been involved in? If the answer is Yes, please describe specific cases, situations or incidents, including the date, the parties involved, and links to any relevant documents. Please note that “affected” may refer to positive and/or negative effects. QUESTION 3 Do you have copies of and/or links to any verifiable reports of experiences of other parties that would be responsive to the questions above? If the answer is yes, please provide these copies and/or links. Please provide either first-person accounts or reliable third-party accounts such as news reports; please do not provide your own version of events. ________________________________ [1] See CCWG-Accountability Main Report, paragraphs 6 and 234, and Annex 12, paragraphs 25-31. * For this Questionnaire, “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. _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction -- ------------ Matthew Shears Global Internet Policy and Human Rights Center for Democracy & Technology (CDT) + 44 771 2472987<tel:+44%207712%20472987> _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction ________________________________ No virus found in this message. Checked by AVG - www.avg.com<http://www.avg.com/email-signature> Version: 2016.0.7996 / Virus Database: 4749/13706 - Release Date: 01/04/17
On Monday 09 January 2017 01:47 AM, farzaneh badii wrote:
Hello
Just to clarify first: I am in total agreement that ICANN should remain incorporated in the US. I have no intention to fight the imperialist windmills.
While I agree that current ICANN's jurisdiction has worked for 19 years, I think we need to add that it has worked well for the majority.
For the minority, it has caused trouble occasionally which can be fixed by providing some solutions and it does not have to change ICANN's jurisdiction.
I am still researching about this and need more evidence but can give you a couple of examples:
1. ICANN is under no obligation to get an OFAC license for registrars applicants who reside in sanctioned countries. Refer to:https://www.icann.org/resources/pages/application-2012-02-25-en
Farzaneh, A clarification; it it not that ICANN is under no obligation to "get" an OFAC licence for registrars applicants who reside in sanctioned countries. /*It indeed is under such an obligation*/. What this text says is that it is under no obligation to "seek" an OFAC licence, which in fact only makes matters worse. I am sure you meant it in the right way, but the different verb can give the very opposite impression to the reader. So, thought I should clarify. Thanks, parminder
"Applicant acknowledges that ICANN must comply with all U.S. laws, rules, and regulations. One such set of regulations is the economic and trade sanctions program administered by the Office of Foreign Assets Control ("OFAC") of the U.S. Department of the Treasury. These sanctions have been imposed on certain countries, as well as individuals and entities that appear on OFAC's List of Specially Designated Nationals and Blocked Persons (the "SDN List"). ICANN is prohibited from providing most goods or services to residents of sanctioned countries or their governmental entities or to SDNs without an applicable U.S. government authorization or exemption. ICANN generally will not seek a license to provide goods or services to an individual or entity on the SDN List. In the past, when ICANNhas been requested to provide services to individuals or entities that are not SDNs, but are residents of sanctioned countries, ICANN has sought and been granted licenses as required. However, Applicant acknowledges that ICANN is under no obligations to seek such licenses and, in any given case, OFAC could decide not to issue a requested license."
2. When an Iranian organizations wanted to join APRALO as an ALS (no application was submitted), we were informally advised that we might want to look into problems that OFAC arises for such application. That was a very informal advice probably from a not very well informed source. But we need to look into this. (anecdotal evidence, might have a very easy solution)
3. And the famous example of the Iranian ccTLD case. Which I have brought up on this list multiple times. What solutions do we have for preventing such cases happening in the future? Are we just going to hope that US courts will rule in favor of ICANN?
This is not only an Iranian related issue. It also affects ordinary people in other countries who are on the sanctioned list.
I don't know if providing recommendations for solving the issues I raised above is in the mandate of this group. All I aim for is to find effective solutions for problems similar to the ones I mentioned.
Farzaneh
On Sun, Jan 8, 2017 at 2:22 PM, matthew shears <mshears@cdt.org <mailto:mshears@cdt.org>> wrote:
David, all
I am similarly concerned. Please see inline
On 07/01/2017 21:55, McAuley, David wrote:
In my personal opinion we are wandering blindly into unwise, unacceptable territory – very possibly inviting a quagmire of suppositions and opinions that would pose the near certainty of derailing our work.
Agreed and I have a related concern. As far as I am aware we have not defined nor agreed what purpose/end the results of the questionnaire would be put. And how we would deal with the results, what weight the results would be given in determining our direction or way forward, or more importantly, any "findings" of the group (although I am a little at a loss to think how we might agree them).
Given the lackluster support for the various alternatives on the last call I am concerned that there seems to be little support, or an acceptable level of comfort, for this approach as a whole.
We should not let the perfect be the enemy of the good, but I am unconvinced that the questionnaire as currently proposed could actually lead to a “good” outcome so I don’t see the good at peril here.
If we conclude that a questionnaire must go out then I support questions 1-3 as widely supported in the survey we did – with no question 4.
This would be my preference as well, especially as some of the alternate versions for Q4 seems to go far beyond the relatively limited mandate of this group.
If any form of Q4 is to be included it must be fact-based, not opinion-based. Here is what I suggest as a compromise path to resolve the Q4 issue – basically one question in two parts:
/ /
/Are you aware of any material, documented instance(s) where ICANN has been unable to pursue its Mission because of its jurisdiction? If so, please provide documentation./
/ /
/Are you aware of and able to document the existence of an alternative jurisdiction where ICANN would not be so prevented from pursuing its Mission? If so, please provide documentation./
Such a questionnaire could of course lead to a full-scale legal due-diligence exercise for suggested alternatives as we recently did with respect to California in Work Stream One (because we would need a demonstration that any such alternative, while possibly solving one perceived problem, did not allow others).
Current jurisdiction has worked well for nineteen years and we just finished reorganizing things at great expense to better fit within California with enforceable Empowered Community powers. Is WS2 to change that?
That is clearly not this group's mandate.
I think we have a different mission than that to accomplish by June. Our mission is essentially to look at settlement of dispute jurisdiction issues and right now that seems like plenty to try to get done by June.
Agreed.
That Q4 is still under consideration, after failing to gain a clear consensus and even getting substantially less support than question 5 (which basically asked if Q’s 1-3 should go out if Q4 was rejected), is puzzling. How can we release Q4 in these circumstances?
This is too important to “wing it and let’s see what happens.” We don’t do survey questions for a living. Don’t we at least need to guarantee that our questions stay within ICANN’s mission and call for answers to do the same? Mathieu, as I recall, said in chat that respondents often go beyond the bounds of what is asked – that tendency itself seems enough to delete Question 4 at the very least.
We should just look at the jurisdiction of contracts and dispute settlements, as paragraph 06 of the Final Report puts it.
A reasonable place to "restart" our work, I would suggest.
Finally, the questionnaire is sensitive enough that we will likely encounter the same debate when we run it by the full CCWG.
Most likely.
Matthew
David
David McAuley
International Policy Manager
Verisign Inc.
703-948-4154 <tel:%28703%29%20948-4154>
*From:*ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org>] *On Behalf Of *Greg Shatan *Sent:* Saturday, January 07, 2017 1:23 PM *To:* ws2-jurisdiction *Subject:* [EXTERNAL] [Ws2-jurisdiction] Jurisdiction Questionnaire: RESPONSE REQUESTED
All,
We made some good progress on our call on Friday, January 6. Following a wide-ranging discussion, we were able to make some headway on refining the draft questionnaire. I encourage those who missed the call to review the recording and notes.
Specifically, we came to a preliminary conclusion on revising the Preamble and Question 1, subject to comment on this list and a final discussion on our next call (Tuesday, January 10 at 13:00). Question 2 had no revisions suggested, and Question 3 had only one revision suggested.
The Preamble and Questions 1, 2 and 3 (with the proposed revision in "track changes") are in the first document below (Word and PDF documents) and also in text below. *Please review this version of the Preamble and Questions 1-3 and provide support (or lack of support) and/or comments for this portion.*
We also discussed several aspects of Question 4, including the purpose of the question; whether the question is different in nature from Questions 1-3; whether or not the question should be included in this questionnaire, a subsequent questionnaire or not at all; the types of responses desired (and the types expected); and the drafting of the question itself. With these topics and seven drafting alternatives (and the ability to pick and choose elements of those alternatives), this required more time than we had left on the call. Therefore, we did not come to any preliminary conclusions on Question 4.
The drafting alternatives for Question 4 (including the current version) are in the second draft document (Word and PDF). Please look at the alternatives carefully, particularly if you have not supported sending question 4 in its current form. * Please review the options for Question 4 and respond, indicating (a) Which version(s) of Question 4 you could support and which you would object to, and (b) If the answer to (a) is "none," how you would change or combine one or more alternatives in order to support it.*
We will conclude this discussion on our call of January 10, so please provide your thoughts and responses before then. Thank you.
Greg
*VERSION OF PREAMBLE AND QUESTIONS 1-3 FOR REVIEW*
*PREAMBLE*
The newly-adopted ICANN bylaws created several Work Stream 2 accountability subgroups. One of them, the subgroup on Jurisdiction, is posing the questions below for community input into the subgroup’s deliberations.
As directed by Bylaw Article 27, Section 27.1(b)(vi) <https://www.icann.org/resources/pages/governance/bylaws-en/#article27> and to the extent set forth in the CCWG-Accountability Final Report <https://community.icann.org/pages/viewpage.action?pageId=58723827&preview=/58723827/58726532/Main%20Report%20-%20FINAL-Revised.pdf>,[1] the Jurisdiction subgroup is addressing jurisdiction*-related questions, including how choice of jurisdiction and applicable laws for dispute settlement impact ICANN's accountability and the actual operation of policies.
To help the subgroup in these endeavors we are asking you to consider and respond to the following specific questions. In this regard, the subgroup is asking for concrete, factual submissions (positive, negative, or neutral) that will help ensure that the subgroup’s deliberations are informed, fact-based, and address real issues. The subgroup is interested in all types of jurisdiction-related factual experiences, not just those involving actual disputes/court cases.
*QUESTION 1*
Has your business, your privacy or your ability to use or purchase domain name-related services been affected by ICANN's jurisdiction* in any way?
If the answer is Yes, please describe specific cases, situations or incidents, including the date, the parties involved, and links to any relevant documents. Please note that “affected” may refer to positive and/or negative effects.
*QUESTION 2*
Has ICANN's jurisdiction* affected any dispute resolution process or litigation related to domain names you have been involved in?
If the answer is Yes, please describe specific cases, situations or incidents, including the date, the parties involved, and links to any relevant documents. Please note that “affected” may refer to positive and/or negative effects.
*QUESTION 3*
Do you have copies of and/or links to any verifiable reports of experiences of other parties that would be responsive to the questions above?
If the answer is yes, please provide these copies and/or links. Please provide either first-person accounts or reliable third-party accounts such as news reports; please do not provide your own version of events.
------------------------------------------------------------------------
[1]_See_ CCWG-Accountability Main Report, paragraphs 6 and 234, and Annex 12, paragraphs 25-31.
* For this Questionnaire, “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.
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction>
-- ------------ Matthew Shears Global Internet Policy and Human Rights Center for Democracy & Technology (CDT) + 44 771 2472987 <tel:+44%207712%20472987>
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction>
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Thank you Farzaneh, this is an excellent illustration of the kind of feedbacks our group needs to collect. I hope this helps bring the questionnaire discussions to a close. Best Mathieu De : ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] De la part de farzaneh badii Envoyé : dimanche 8 janvier 2017 21:17 À : matthew shears Cc : ws2-jurisdiction@icann.org Objet : Re: [Ws2-jurisdiction] Jurisdiction Questionnaire: RESPONSE REQUESTED Hello Just to clarify first: I am in total agreement that ICANN should remain incorporated in the US. I have no intention to fight the imperialist windmills. While I agree that current ICANN's jurisdiction has worked for 19 years, I think we need to add that it has worked well for the majority. For the minority, it has caused trouble occasionally which can be fixed by providing some solutions and it does not have to change ICANN's jurisdiction. I am still researching about this and need more evidence but can give you a couple of examples: 1. ICANN is under no obligation to get an OFAC license for registrars applicants who reside in sanctioned countries. Refer to:https://www.icann.org/resources/pages/application-2012-02-25-en "Applicant acknowledges that ICANN must comply with all U.S. laws, rules, and regulations. One such set of regulations is the economic and trade sanctions program administered by the Office of Foreign Assets Control ("OFAC") of the U.S. Department of the Treasury. These sanctions have been imposed on certain countries, as well as individuals and entities that appear on OFAC's List of Specially Designated Nationals and Blocked Persons (the "SDN List"). ICANN is prohibited from providing most goods or services to residents of sanctioned countries or their governmental entities or to SDNs without an applicable U.S. government authorization or exemption. ICANN generally will not seek a license to provide goods or services to an individual or entity on the SDN List. In the past, when ICANNhas been requested to provide services to individuals or entities that are not SDNs, but are residents of sanctioned countries, ICANN has sought and been granted licenses as required. However, Applicant acknowledges that ICANN is under no obligations to seek such licenses and, in any given case, OFAC could decide not to issue a requested license." 2. When an Iranian organizations wanted to join APRALO as an ALS (no application was submitted), we were informally advised that we might want to look into problems that OFAC arises for such application. That was a very informal advice probably from a not very well informed source. But we need to look into this. (anecdotal evidence, might have a very easy solution) 3. And the famous example of the Iranian ccTLD case. Which I have brought up on this list multiple times. What solutions do we have for preventing such cases happening in the future? Are we just going to hope that US courts will rule in favor of ICANN? This is not only an Iranian related issue. It also affects ordinary people in other countries who are on the sanctioned list. I don't know if providing recommendations for solving the issues I raised above is in the mandate of this group. All I aim for is to find effective solutions for problems similar to the ones I mentioned. Farzaneh On Sun, Jan 8, 2017 at 2:22 PM, matthew shears <mshears@cdt.org> wrote: David, all I am similarly concerned. Please see inline On 07/01/2017 21:55, McAuley, David wrote: In my personal opinion we are wandering blindly into unwise, unacceptable territory – very possibly inviting a quagmire of suppositions and opinions that would pose the near certainty of derailing our work. Agreed and I have a related concern. As far as I am aware we have not defined nor agreed what purpose/end the results of the questionnaire would be put. And how we would deal with the results, what weight the results would be given in determining our direction or way forward, or more importantly, any "findings" of the group (although I am a little at a loss to think how we might agree them). Given the lackluster support for the various alternatives on the last call I am concerned that there seems to be little support, or an acceptable level of comfort, for this approach as a whole. We should not let the perfect be the enemy of the good, but I am unconvinced that the questionnaire as currently proposed could actually lead to a “good” outcome so I don’t see the good at peril here. If we conclude that a questionnaire must go out then I support questions 1-3 as widely supported in the survey we did – with no question 4. This would be my preference as well, especially as some of the alternate versions for Q4 seems to go far beyond the relatively limited mandate of this group. If any form of Q4 is to be included it must be fact-based, not opinion-based. Here is what I suggest as a compromise path to resolve the Q4 issue – basically one question in two parts: Are you aware of any material, documented instance(s) where ICANN has been unable to pursue its Mission because of its jurisdiction? If so, please provide documentation. Are you aware of and able to document the existence of an alternative jurisdiction where ICANN would not be so prevented from pursuing its Mission? If so, please provide documentation. Such a questionnaire could of course lead to a full-scale legal due-diligence exercise for suggested alternatives as we recently did with respect to California in Work Stream One (because we would need a demonstration that any such alternative, while possibly solving one perceived problem, did not allow others). Current jurisdiction has worked well for nineteen years and we just finished reorganizing things at great expense to better fit within California with enforceable Empowered Community powers. Is WS2 to change that? That is clearly not this group's mandate. I think we have a different mission than that to accomplish by June. Our mission is essentially to look at settlement of dispute jurisdiction issues and right now that seems like plenty to try to get done by June. Agreed. That Q4 is still under consideration, after failing to gain a clear consensus and even getting substantially less support than question 5 (which basically asked if Q’s 1-3 should go out if Q4 was rejected), is puzzling. How can we release Q4 in these circumstances? This is too important to “wing it and let’s see what happens.” We don’t do survey questions for a living. Don’t we at least need to guarantee that our questions stay within ICANN’s mission and call for answers to do the same? Mathieu, as I recall, said in chat that respondents often go beyond the bounds of what is asked – that tendency itself seems enough to delete Question 4 at the very least. We should just look at the jurisdiction of contracts and dispute settlements, as paragraph 06 of the Final Report puts it. A reasonable place to "restart" our work, I would suggest. Finally, the questionnaire is sensitive enough that we will likely encounter the same debate when we run it by the full CCWG. Most likely. Matthew David David McAuley International Policy Manager Verisign Inc. 703-948-4154 <tel:(703)%20948-4154> From: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Greg Shatan Sent: Saturday, January 07, 2017 1:23 PM To: ws2-jurisdiction Subject: [EXTERNAL] [Ws2-jurisdiction] Jurisdiction Questionnaire: RESPONSE REQUESTED All, We made some good progress on our call on Friday, January 6. Following a wide-ranging discussion, we were able to make some headway on refining the draft questionnaire. I encourage those who missed the call to review the recording and notes. Specifically, we came to a preliminary conclusion on revising the Preamble and Question 1, subject to comment on this list and a final discussion on our next call (Tuesday, January 10 at 13:00). Question 2 had no revisions suggested, and Question 3 had only one revision suggested. The Preamble and Questions 1, 2 and 3 (with the proposed revision in "track changes") are in the first document below (Word and PDF documents) and also in text below. Please review this version of the Preamble and Questions 1-3 and provide support (or lack of support) and/or comments for this portion. We also discussed several aspects of Question 4, including the purpose of the question; whether the question is different in nature from Questions 1-3; whether or not the question should be included in this questionnaire, a subsequent questionnaire or not at all; the types of responses desired (and the types expected); and the drafting of the question itself. With these topics and seven drafting alternatives (and the ability to pick and choose elements of those alternatives), this required more time than we had left on the call. Therefore, we did not come to any preliminary conclusions on Question 4. The drafting alternatives for Question 4 (including the current version) are in the second draft document (Word and PDF). Please look at the alternatives carefully, particularly if you have not supported sending question 4 in its current form. Please review the options for Question 4 and respond, indicating (a) Which version(s) of Question 4 you could support and which you would object to, and (b) If the answer to (a) is "none," how you would change or combine one or more alternatives in order to support it. We will conclude this discussion on our call of January 10, so please provide your thoughts and responses before then. Thank you. Greg VERSION OF PREAMBLE AND QUESTIONS 1-3 FOR REVIEW PREAMBLE The newly-adopted ICANN bylaws created several Work Stream 2 accountability subgroups. One of them, the subgroup on Jurisdiction, is posing the questions below for community input into the subgroup’s deliberations. As directed by Bylaw Article 27, Section 27.1(b)(vi) <https://www.icann.org/resources/pages/governance/bylaws-en/#article27> and to the extent set forth in the CCWG-Accountability Final Report <https://community.icann.org/pages/viewpage.action?pageId=58723827&preview=/5...> ,[1] the Jurisdiction subgroup is addressing jurisdiction*-related questions, including how choice of jurisdiction and applicable laws for dispute settlement impact ICANN's accountability and the actual operation of policies. To help the subgroup in these endeavors we are asking you to consider and respond to the following specific questions. In this regard, the subgroup is asking for concrete, factual submissions (positive, negative, or neutral) that will help ensure that the subgroup’s deliberations are informed, fact-based, and address real issues. The subgroup is interested in all types of jurisdiction-related factual experiences, not just those involving actual disputes/court cases. QUESTION 1 Has your business, your privacy or your ability to use or purchase domain name-related services been affected by ICANN's jurisdiction* in any way? If the answer is Yes, please describe specific cases, situations or incidents, including the date, the parties involved, and links to any relevant documents. Please note that “affected” may refer to positive and/or negative effects. QUESTION 2 Has ICANN's jurisdiction* affected any dispute resolution process or litigation related to domain names you have been involved in? If the answer is Yes, please describe specific cases, situations or incidents, including the date, the parties involved, and links to any relevant documents. Please note that “affected” may refer to positive and/or negative effects. QUESTION 3 Do you have copies of and/or links to any verifiable reports of experiences of other parties that would be responsive to the questions above? If the answer is yes, please provide these copies and/or links. Please provide either first-person accounts or reliable third-party accounts such as news reports; please do not provide your own version of events. _____ [1] See CCWG-Accountability Main Report, paragraphs 6 and 234, and Annex 12, paragraphs 25-31. * For this Questionnaire, “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. _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction -- ------------ Matthew Shears Global Internet Policy and Human Rights Center for Democracy & Technology (CDT) + 44 771 2472987 <tel:+44%207712%20472987> _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
Dear Mathieu, Tks for your comment. But 2017-01-09 12:35 GMT+01:00 Mathieu Weill <mathieu.weill@afnic.fr>:
Thank you Farzaneh, this is an excellent illustration of the kind of feedbacks our group needs to collect. I hope this helps bring the questionnaire discussions to a close.
Best
Mathieu
*De :* ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction- bounces@icann.org] *De la part de* farzaneh badii *Envoyé :* dimanche 8 janvier 2017 21:17 *À :* matthew shears *Cc :* ws2-jurisdiction@icann.org *Objet :* Re: [Ws2-jurisdiction] Jurisdiction Questionnaire: RESPONSE REQUESTED
Hello
Just to clarify first: I am in total agreement that ICANN should remain incorporated in the US. I have no intention to fight the imperialist windmills.
While I agree that current ICANN's jurisdiction has worked for 19 years, I think we need to add that it has worked well for the majority.
For the minority, it has caused trouble occasionally which can be fixed by providing some solutions and it does not have to change ICANN's jurisdiction.
I am still researching about this and need more evidence but can give you a couple of examples:
1. ICANN is under no obligation to get an OFAC license for registrars applicants who reside in sanctioned countries. Refer to: https://www.icann.org/resources/pages/application-2012-02-25-en
"Applicant acknowledges that ICANN must comply with all U.S. laws, rules, and regulations. One such set of regulations is the economic and trade sanctions program administered by the Office of Foreign Assets Control ("OFAC") of the U.S. Department of the Treasury. These sanctions have been imposed on certain countries, as well as individuals and entities that appear on OFAC's List of Specially Designated Nationals and Blocked Persons (the "SDN List"). ICANN is prohibited from providing most goods or services to residents of sanctioned countries or their governmental entities or to SDNs without an applicable U.S. government authorization or exemption. ICANN generally will not seek a license to provide goods or services to an individual or entity on the SDN List. In the past, when ICANNhas been requested to provide services to individuals or entities that are not SDNs, but are residents of sanctioned countries, ICANN has sought and been granted licenses as required. However, Applicant acknowledges that ICANN is under no obligations to seek such licenses and, in any given case, OFAC could decide not to issue a requested license."
2. When an Iranian organizations wanted to join APRALO as an ALS (no application was submitted), we were informally advised that we might want to look into problems that OFAC arises for such application. That was a very informal advice probably from a not very well informed source. But we need to look into this. (anecdotal evidence, might have a very easy solution)
3. And the famous example of the Iranian ccTLD case. Which I have brought up on this list multiple times. What solutions do we have for preventing such cases happening in the future? Are we just going to hope that US courts will rule in favor of ICANN?
This is not only an Iranian related issue. It also affects ordinary people in other countries who are on the sanctioned list.
I don't know if providing recommendations for solving the issues I raised above is in the mandate of this group. All I aim for is to find effective solutions for problems similar to the ones I mentioned.
Farzaneh
On Sun, Jan 8, 2017 at 2:22 PM, matthew shears <mshears@cdt.org> wrote:
David, all
I am similarly concerned. Please see inline
On 07/01/2017 21:55, McAuley, David wrote:
In my personal opinion we are wandering blindly into unwise, unacceptable territory – very possibly inviting a quagmire of suppositions and opinions that would pose the near certainty of derailing our work.
Agreed and I have a related concern. As far as I am aware we have not defined nor agreed what purpose/end the results of the questionnaire would be put. And how we would deal with the results, what weight the results would be given in determining our direction or way forward, or more importantly, any "findings" of the group (although I am a little at a loss to think how we might agree them).
Given the lackluster support for the various alternatives on the last call I am concerned that there seems to be little support, or an acceptable level of comfort, for this approach as a whole.
We should not let the perfect be the enemy of the good, but I am unconvinced that the questionnaire as currently proposed could actually lead to a “good” outcome so I don’t see the good at peril here.
If we conclude that a questionnaire must go out then I support questions 1-3 as widely supported in the survey we did – with no question 4.
This would be my preference as well, especially as some of the alternate versions for Q4 seems to go far beyond the relatively limited mandate of this group.
If any form of Q4 is to be included it must be fact-based, not opinion-based. Here is what I suggest as a compromise path to resolve the Q4 issue – basically one question in two parts:
*Are you aware of any material, documented instance(s) where ICANN has been unable to pursue its Mission because of its jurisdiction? If so, please provide documentation.*
*Are you aware of and able to document the existence of an alternative jurisdiction where ICANN would not be so prevented from pursuing its Mission? If so, please provide documentation.*
Such a questionnaire could of course lead to a full-scale legal due-diligence exercise for suggested alternatives as we recently did with respect to California in Work Stream One (because we would need a demonstration that any such alternative, while possibly solving one perceived problem, did not allow others).
Current jurisdiction has worked well for nineteen years and we just finished reorganizing things at great expense to better fit within California with enforceable Empowered Community powers. Is WS2 to change that?
That is clearly not this group's mandate.
I think we have a different mission than that to accomplish by June. Our mission is essentially to look at settlement of dispute jurisdiction issues and right now that seems like plenty to try to get done by June.
Agreed.
That Q4 is still under consideration, after failing to gain a clear consensus and even getting substantially less support than question 5 (which basically asked if Q’s 1-3 should go out if Q4 was rejected), is puzzling. How can we release Q4 in these circumstances?
This is too important to “wing it and let’s see what happens.” We don’t do survey questions for a living. Don’t we at least need to guarantee that our questions stay within ICANN’s mission and call for answers to do the same? Mathieu, as I recall, said in chat that respondents often go beyond the bounds of what is asked – that tendency itself seems enough to delete Question 4 at the very least.
We should just look at the jurisdiction of contracts and dispute settlements, as paragraph 06 of the Final Report puts it.
A reasonable place to "restart" our work, I would suggest.
Finally, the questionnaire is sensitive enough that we will likely encounter the same debate when we run it by the full CCWG.
Most likely.
Matthew
David
David McAuley
International Policy Manager
Verisign Inc.
703-948-4154 <(703)%20948-4154>
*From:* ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction- bounces@icann.org <ws2-jurisdiction-bounces@icann.org>] *On Behalf Of *Greg Shatan *Sent:* Saturday, January 07, 2017 1:23 PM *To:* ws2-jurisdiction *Subject:* [EXTERNAL] [Ws2-jurisdiction] Jurisdiction Questionnaire: RESPONSE REQUESTED
All,
We made some good progress on our call on Friday, January 6. Following a wide-ranging discussion, we were able to make some headway on refining the draft questionnaire. I encourage those who missed the call to review the recording and notes.
Specifically, we came to a preliminary conclusion on revising the Preamble and Question 1, subject to comment on this list and a final discussion on our next call (Tuesday, January 10 at 13:00). Question 2 had no revisions suggested, and Question 3 had only one revision suggested.
The Preamble and Questions 1, 2 and 3 (with the proposed revision in "track changes") are in the first document below (Word and PDF documents) and also in text below. *Please review this version of the Preamble and Questions 1-3 and provide support (or lack of support) and/or comments for this portion.*
We also discussed several aspects of Question 4, including the purpose of the question; whether the question is different in nature from Questions 1-3; whether or not the question should be included in this questionnaire, a subsequent questionnaire or not at all; the types of responses desired (and the types expected); and the drafting of the question itself. With these topics and seven drafting alternatives (and the ability to pick and choose elements of those alternatives), this required more time than we had left on the call. Therefore, we did not come to any preliminary conclusions on Question 4.
The drafting alternatives for Question 4 (including the current version) are in the second draft document (Word and PDF). Please look at the alternatives carefully, particularly if you have not supported sending question 4 in its current form. * Please review the options for Question 4 and respond, indicating (a) Which version(s) of Question 4 you could support and which you would object to, and (b) If the answer to (a) is "none," how you would change or combine one or more alternatives in order to support it.*
We will conclude this discussion on our call of January 10, so please provide your thoughts and responses before then. Thank you.
Greg
*VERSION OF PREAMBLE AND QUESTIONS 1-3 FOR REVIEW*
*PREAMBLE*
The newly-adopted ICANN bylaws created several Work Stream 2 accountability subgroups. One of them, the subgroup on Jurisdiction, is posing the questions below for community input into the subgroup’s deliberations.
As directed by Bylaw Article 27, Section 27.1(b)(vi) <https://www.icann.org/resources/pages/governance/bylaws-en/#article27> and to the extent set forth in the CCWG-Accountability Final Report <https://community.icann.org/pages/viewpage.action?pageId=58723827&preview=/5...> ,[1] the Jurisdiction subgroup is addressing jurisdiction*-related questions, including how choice of jurisdiction and applicable laws for dispute settlement impact ICANN's accountability and the actual operation of policies.
To help the subgroup in these endeavors we are asking you to consider and respond to the following specific questions. In this regard, the subgroup is asking for concrete, factual submissions (positive, negative, or neutral) that will help ensure that the subgroup’s deliberations are informed, fact-based, and address real issues. The subgroup is interested in all types of jurisdiction-related factual experiences, not just those involving actual disputes/court cases.
*QUESTION 1*
Has your business, your privacy or your ability to use or purchase domain name-related services been affected by ICANN's jurisdiction* in any way?
If the answer is Yes, please describe specific cases, situations or incidents, including the date, the parties involved, and links to any relevant documents. Please note that “affected” may refer to positive and/or negative effects.
*QUESTION 2*
Has ICANN's jurisdiction* affected any dispute resolution process or litigation related to domain names you have been involved in?
If the answer is Yes, please describe specific cases, situations or incidents, including the date, the parties involved, and links to any relevant documents. Please note that “affected” may refer to positive and/or negative effects.
*QUESTION 3*
Do you have copies of and/or links to any verifiable reports of experiences of other parties that would be responsive to the questions above?
If the answer is yes, please provide these copies and/or links. Please provide either first-person accounts or reliable third-party accounts such as news reports; please do not provide your own version of events.
------------------------------
[1] *See* CCWG-Accountability Main Report, paragraphs 6 and 234, and Annex 12, paragraphs 25-31.
* For this Questionnaire, “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.
_______________________________________________
Ws2-jurisdiction mailing list
Ws2-jurisdiction@icann.org
https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
--
------------
Matthew Shears
Global Internet Policy and Human Rights
Center for Democracy & Technology (CDT)
+ 44 771 2472987 <+44%207712%20472987>
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
Dear Mathieu, Tks for your comment. But I am not comfortable of what you have concluded. i.e. Quote " *I hope this helps bring the questionnaire discussions to a close."* Instead ,I expected you conclude that * this helps bring the questionnaire discussions to an acceptable compromise among the members. Pls also consider the last part of Farzaneh and in this regard* *As a Co-Chair, of CCWG, I EXPECTED A MORE RECOPNCILIATORY COMMENTS FROPM YOU. disappointed TOTALLY * *Kavouss * 2017-01-09 12:52 GMT+01:00 Kavouss Arasteh <kavouss.arasteh@gmail.com>:
Dear Mathieu, Tks for your comment. But
2017-01-09 12:35 GMT+01:00 Mathieu Weill <mathieu.weill@afnic.fr>:
Thank you Farzaneh, this is an excellent illustration of the kind of feedbacks our group needs to collect. I hope this helps bring the questionnaire discussions to a close.
Best
Mathieu
*De :* ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounc es@icann.org] *De la part de* farzaneh badii *Envoyé :* dimanche 8 janvier 2017 21:17 *À :* matthew shears *Cc :* ws2-jurisdiction@icann.org *Objet :* Re: [Ws2-jurisdiction] Jurisdiction Questionnaire: RESPONSE REQUESTED
Hello
Just to clarify first: I am in total agreement that ICANN should remain incorporated in the US. I have no intention to fight the imperialist windmills.
While I agree that current ICANN's jurisdiction has worked for 19 years, I think we need to add that it has worked well for the majority.
For the minority, it has caused trouble occasionally which can be fixed by providing some solutions and it does not have to change ICANN's jurisdiction.
I am still researching about this and need more evidence but can give you a couple of examples:
1. ICANN is under no obligation to get an OFAC license for registrars applicants who reside in sanctioned countries. Refer to: https://www.icann.org/resources/pages/application-2012-02-25-en
"Applicant acknowledges that ICANN must comply with all U.S. laws, rules, and regulations. One such set of regulations is the economic and trade sanctions program administered by the Office of Foreign Assets Control ("OFAC") of the U.S. Department of the Treasury. These sanctions have been imposed on certain countries, as well as individuals and entities that appear on OFAC's List of Specially Designated Nationals and Blocked Persons (the "SDN List"). ICANN is prohibited from providing most goods or services to residents of sanctioned countries or their governmental entities or to SDNs without an applicable U.S. government authorization or exemption. ICANN generally will not seek a license to provide goods or services to an individual or entity on the SDN List. In the past, when ICANNhas been requested to provide services to individuals or entities that are not SDNs, but are residents of sanctioned countries, ICANN has sought and been granted licenses as required. However, Applicant acknowledges that ICANN is under no obligations to seek such licenses and, in any given case, OFAC could decide not to issue a requested license."
2. When an Iranian organizations wanted to join APRALO as an ALS (no application was submitted), we were informally advised that we might want to look into problems that OFAC arises for such application. That was a very informal advice probably from a not very well informed source. But we need to look into this. (anecdotal evidence, might have a very easy solution)
3. And the famous example of the Iranian ccTLD case. Which I have brought up on this list multiple times. What solutions do we have for preventing such cases happening in the future? Are we just going to hope that US courts will rule in favor of ICANN?
This is not only an Iranian related issue. It also affects ordinary people in other countries who are on the sanctioned list.
I don't know if providing recommendations for solving the issues I raised above is in the mandate of this group. All I aim for is to find effective solutions for problems similar to the ones I mentioned.
Farzaneh
On Sun, Jan 8, 2017 at 2:22 PM, matthew shears <mshears@cdt.org> wrote:
David, all
I am similarly concerned. Please see inline
On 07/01/2017 21:55, McAuley, David wrote:
In my personal opinion we are wandering blindly into unwise, unacceptable territory – very possibly inviting a quagmire of suppositions and opinions that would pose the near certainty of derailing our work.
Agreed and I have a related concern. As far as I am aware we have not defined nor agreed what purpose/end the results of the questionnaire would be put. And how we would deal with the results, what weight the results would be given in determining our direction or way forward, or more importantly, any "findings" of the group (although I am a little at a loss to think how we might agree them).
Given the lackluster support for the various alternatives on the last call I am concerned that there seems to be little support, or an acceptable level of comfort, for this approach as a whole.
We should not let the perfect be the enemy of the good, but I am unconvinced that the questionnaire as currently proposed could actually lead to a “good” outcome so I don’t see the good at peril here.
If we conclude that a questionnaire must go out then I support questions 1-3 as widely supported in the survey we did – with no question 4.
This would be my preference as well, especially as some of the alternate versions for Q4 seems to go far beyond the relatively limited mandate of this group.
If any form of Q4 is to be included it must be fact-based, not opinion-based. Here is what I suggest as a compromise path to resolve the Q4 issue – basically one question in two parts:
*Are you aware of any material, documented instance(s) where ICANN has been unable to pursue its Mission because of its jurisdiction? If so, please provide documentation.*
*Are you aware of and able to document the existence of an alternative jurisdiction where ICANN would not be so prevented from pursuing its Mission? If so, please provide documentation.*
Such a questionnaire could of course lead to a full-scale legal due-diligence exercise for suggested alternatives as we recently did with respect to California in Work Stream One (because we would need a demonstration that any such alternative, while possibly solving one perceived problem, did not allow others).
Current jurisdiction has worked well for nineteen years and we just finished reorganizing things at great expense to better fit within California with enforceable Empowered Community powers. Is WS2 to change that?
That is clearly not this group's mandate.
I think we have a different mission than that to accomplish by June. Our mission is essentially to look at settlement of dispute jurisdiction issues and right now that seems like plenty to try to get done by June.
Agreed.
That Q4 is still under consideration, after failing to gain a clear consensus and even getting substantially less support than question 5 (which basically asked if Q’s 1-3 should go out if Q4 was rejected), is puzzling. How can we release Q4 in these circumstances?
This is too important to “wing it and let’s see what happens.” We don’t do survey questions for a living. Don’t we at least need to guarantee that our questions stay within ICANN’s mission and call for answers to do the same? Mathieu, as I recall, said in chat that respondents often go beyond the bounds of what is asked – that tendency itself seems enough to delete Question 4 at the very least.
We should just look at the jurisdiction of contracts and dispute settlements, as paragraph 06 of the Final Report puts it.
A reasonable place to "restart" our work, I would suggest.
Finally, the questionnaire is sensitive enough that we will likely encounter the same debate when we run it by the full CCWG.
Most likely.
Matthew
David
David McAuley
International Policy Manager
Verisign Inc.
703-948-4154 <(703)%20948-4154>
*From:* ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounc es@icann.org <ws2-jurisdiction-bounces@icann.org>] *On Behalf Of *Greg Shatan *Sent:* Saturday, January 07, 2017 1:23 PM *To:* ws2-jurisdiction *Subject:* [EXTERNAL] [Ws2-jurisdiction] Jurisdiction Questionnaire: RESPONSE REQUESTED
All,
We made some good progress on our call on Friday, January 6. Following a wide-ranging discussion, we were able to make some headway on refining the draft questionnaire. I encourage those who missed the call to review the recording and notes.
Specifically, we came to a preliminary conclusion on revising the Preamble and Question 1, subject to comment on this list and a final discussion on our next call (Tuesday, January 10 at 13:00). Question 2 had no revisions suggested, and Question 3 had only one revision suggested.
The Preamble and Questions 1, 2 and 3 (with the proposed revision in "track changes") are in the first document below (Word and PDF documents) and also in text below. *Please review this version of the Preamble and Questions 1-3 and provide support (or lack of support) and/or comments for this portion.*
We also discussed several aspects of Question 4, including the purpose of the question; whether the question is different in nature from Questions 1-3; whether or not the question should be included in this questionnaire, a subsequent questionnaire or not at all; the types of responses desired (and the types expected); and the drafting of the question itself. With these topics and seven drafting alternatives (and the ability to pick and choose elements of those alternatives), this required more time than we had left on the call. Therefore, we did not come to any preliminary conclusions on Question 4.
The drafting alternatives for Question 4 (including the current version) are in the second draft document (Word and PDF). Please look at the alternatives carefully, particularly if you have not supported sending question 4 in its current form. * Please review the options for Question 4 and respond, indicating (a) Which version(s) of Question 4 you could support and which you would object to, and (b) If the answer to (a) is "none," how you would change or combine one or more alternatives in order to support it.*
We will conclude this discussion on our call of January 10, so please provide your thoughts and responses before then. Thank you.
Greg
*VERSION OF PREAMBLE AND QUESTIONS 1-3 FOR REVIEW*
*PREAMBLE*
The newly-adopted ICANN bylaws created several Work Stream 2 accountability subgroups. One of them, the subgroup on Jurisdiction, is posing the questions below for community input into the subgroup’s deliberations.
As directed by Bylaw Article 27, Section 27.1(b)(vi) <https://www.icann.org/resources/pages/governance/bylaws-en/#article27> and to the extent set forth in the CCWG-Accountability Final Report <https://community.icann.org/pages/viewpage.action?pageId=58723827&preview=/5...> ,[1] the Jurisdiction subgroup is addressing jurisdiction*-related questions, including how choice of jurisdiction and applicable laws for dispute settlement impact ICANN's accountability and the actual operation of policies.
To help the subgroup in these endeavors we are asking you to consider and respond to the following specific questions. In this regard, the subgroup is asking for concrete, factual submissions (positive, negative, or neutral) that will help ensure that the subgroup’s deliberations are informed, fact-based, and address real issues. The subgroup is interested in all types of jurisdiction-related factual experiences, not just those involving actual disputes/court cases.
*QUESTION 1*
Has your business, your privacy or your ability to use or purchase domain name-related services been affected by ICANN's jurisdiction* in any way?
If the answer is Yes, please describe specific cases, situations or incidents, including the date, the parties involved, and links to any relevant documents. Please note that “affected” may refer to positive and/or negative effects.
*QUESTION 2*
Has ICANN's jurisdiction* affected any dispute resolution process or litigation related to domain names you have been involved in?
If the answer is Yes, please describe specific cases, situations or incidents, including the date, the parties involved, and links to any relevant documents. Please note that “affected” may refer to positive and/or negative effects.
*QUESTION 3*
Do you have copies of and/or links to any verifiable reports of experiences of other parties that would be responsive to the questions above?
If the answer is yes, please provide these copies and/or links. Please provide either first-person accounts or reliable third-party accounts such as news reports; please do not provide your own version of events.
------------------------------
[1] *See* CCWG-Accountability Main Report, paragraphs 6 and 234, and Annex 12, paragraphs 25-31.
* For this Questionnaire, “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.
_______________________________________________
Ws2-jurisdiction mailing list
Ws2-jurisdiction@icann.org
https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
--
------------
Matthew Shears
Global Internet Policy and Human Rights
Center for Democracy & Technology (CDT)
+ 44 771 2472987 <+44%207712%20472987>
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
Kavouss, Your formulation is certainly better than mine, I am confident you will find a way forgive me for being excessively concise. Mathieu De : Kavouss Arasteh [mailto:kavouss.arasteh@gmail.com] Envoyé : lundi 9 janvier 2017 12:57 À : Mathieu Weill Cc : farzaneh badii; matthew shears; ws2-jurisdiction Objet : Re: [Ws2-jurisdiction] Jurisdiction Questionnaire: RESPONSE REQUESTED Dear Mathieu, Tks for your comment. But I am not comfortable of what you have concluded. i.e. Quote " I hope this helps bring the questionnaire discussions to a close." Instead ,I expected you conclude that this helps bring the questionnaire discussions to an acceptable compromise among the members. Pls also consider the last part of Farzaneh and in this regard As a Co-Chair, of CCWG, I EXPECTED A MORE RECOPNCILIATORY COMMENTS FROPM YOU. disappointed TOTALLY Kavouss 2017-01-09 12:52 GMT+01:00 Kavouss Arasteh <kavouss.arasteh@gmail.com>: Dear Mathieu, Tks for your comment. But 2017-01-09 12:35 GMT+01:00 Mathieu Weill <mathieu.weill@afnic.fr>: Thank you Farzaneh, this is an excellent illustration of the kind of feedbacks our group needs to collect. I hope this helps bring the questionnaire discussions to a close. Best Mathieu De : ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] De la part de farzaneh badii Envoyé : dimanche 8 janvier 2017 21:17 À : matthew shears Cc : ws2-jurisdiction@icann.org Objet : Re: [Ws2-jurisdiction] Jurisdiction Questionnaire: RESPONSE REQUESTED Hello Just to clarify first: I am in total agreement that ICANN should remain incorporated in the US. I have no intention to fight the imperialist windmills. While I agree that current ICANN's jurisdiction has worked for 19 years, I think we need to add that it has worked well for the majority. For the minority, it has caused trouble occasionally which can be fixed by providing some solutions and it does not have to change ICANN's jurisdiction. I am still researching about this and need more evidence but can give you a couple of examples: 1. ICANN is under no obligation to get an OFAC license for registrars applicants who reside in sanctioned countries. Refer to:https://www.icann.org/resources/pages/application-2012-02-25-en "Applicant acknowledges that ICANN must comply with all U.S. laws, rules, and regulations. One such set of regulations is the economic and trade sanctions program administered by the Office of Foreign Assets Control ("OFAC") of the U.S. Department of the Treasury. These sanctions have been imposed on certain countries, as well as individuals and entities that appear on OFAC's List of Specially Designated Nationals and Blocked Persons (the "SDN List"). ICANN is prohibited from providing most goods or services to residents of sanctioned countries or their governmental entities or to SDNs without an applicable U.S. government authorization or exemption. ICANN generally will not seek a license to provide goods or services to an individual or entity on the SDN List. In the past, when ICANNhas been requested to provide services to individuals or entities that are not SDNs, but are residents of sanctioned countries, ICANN has sought and been granted licenses as required. However, Applicant acknowledges that ICANN is under no obligations to seek such licenses and, in any given case, OFAC could decide not to issue a requested license." 2. When an Iranian organizations wanted to join APRALO as an ALS (no application was submitted), we were informally advised that we might want to look into problems that OFAC arises for such application. That was a very informal advice probably from a not very well informed source. But we need to look into this. (anecdotal evidence, might have a very easy solution) 3. And the famous example of the Iranian ccTLD case. Which I have brought up on this list multiple times. What solutions do we have for preventing such cases happening in the future? Are we just going to hope that US courts will rule in favor of ICANN? This is not only an Iranian related issue. It also affects ordinary people in other countries who are on the sanctioned list. I don't know if providing recommendations for solving the issues I raised above is in the mandate of this group. All I aim for is to find effective solutions for problems similar to the ones I mentioned. Farzaneh On Sun, Jan 8, 2017 at 2:22 PM, matthew shears <mshears@cdt.org> wrote: David, all I am similarly concerned. Please see inline On 07/01/2017 21:55, McAuley, David wrote: In my personal opinion we are wandering blindly into unwise, unacceptable territory – very possibly inviting a quagmire of suppositions and opinions that would pose the near certainty of derailing our work. Agreed and I have a related concern. As far as I am aware we have not defined nor agreed what purpose/end the results of the questionnaire would be put. And how we would deal with the results, what weight the results would be given in determining our direction or way forward, or more importantly, any "findings" of the group (although I am a little at a loss to think how we might agree them). Given the lackluster support for the various alternatives on the last call I am concerned that there seems to be little support, or an acceptable level of comfort, for this approach as a whole. We should not let the perfect be the enemy of the good, but I am unconvinced that the questionnaire as currently proposed could actually lead to a “good” outcome so I don’t see the good at peril here. If we conclude that a questionnaire must go out then I support questions 1-3 as widely supported in the survey we did – with no question 4. This would be my preference as well, especially as some of the alternate versions for Q4 seems to go far beyond the relatively limited mandate of this group. If any form of Q4 is to be included it must be fact-based, not opinion-based. Here is what I suggest as a compromise path to resolve the Q4 issue – basically one question in two parts: Are you aware of any material, documented instance(s) where ICANN has been unable to pursue its Mission because of its jurisdiction? If so, please provide documentation. Are you aware of and able to document the existence of an alternative jurisdiction where ICANN would not be so prevented from pursuing its Mission? If so, please provide documentation. Such a questionnaire could of course lead to a full-scale legal due-diligence exercise for suggested alternatives as we recently did with respect to California in Work Stream One (because we would need a demonstration that any such alternative, while possibly solving one perceived problem, did not allow others). Current jurisdiction has worked well for nineteen years and we just finished reorganizing things at great expense to better fit within California with enforceable Empowered Community powers. Is WS2 to change that? That is clearly not this group's mandate. I think we have a different mission than that to accomplish by June. Our mission is essentially to look at settlement of dispute jurisdiction issues and right now that seems like plenty to try to get done by June. Agreed. That Q4 is still under consideration, after failing to gain a clear consensus and even getting substantially less support than question 5 (which basically asked if Q’s 1-3 should go out if Q4 was rejected), is puzzling. How can we release Q4 in these circumstances? This is too important to “wing it and let’s see what happens.” We don’t do survey questions for a living. Don’t we at least need to guarantee that our questions stay within ICANN’s mission and call for answers to do the same? Mathieu, as I recall, said in chat that respondents often go beyond the bounds of what is asked – that tendency itself seems enough to delete Question 4 at the very least. We should just look at the jurisdiction of contracts and dispute settlements, as paragraph 06 of the Final Report puts it. A reasonable place to "restart" our work, I would suggest. Finally, the questionnaire is sensitive enough that we will likely encounter the same debate when we run it by the full CCWG. Most likely. Matthew David David McAuley International Policy Manager Verisign Inc. 703-948-4154 <tel:(703)%20948-4154> From: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Greg Shatan Sent: Saturday, January 07, 2017 1:23 PM To: ws2-jurisdiction Subject: [EXTERNAL] [Ws2-jurisdiction] Jurisdiction Questionnaire: RESPONSE REQUESTED All, We made some good progress on our call on Friday, January 6. Following a wide-ranging discussion, we were able to make some headway on refining the draft questionnaire. I encourage those who missed the call to review the recording and notes. Specifically, we came to a preliminary conclusion on revising the Preamble and Question 1, subject to comment on this list and a final discussion on our next call (Tuesday, January 10 at 13:00). Question 2 had no revisions suggested, and Question 3 had only one revision suggested. The Preamble and Questions 1, 2 and 3 (with the proposed revision in "track changes") are in the first document below (Word and PDF documents) and also in text below. Please review this version of the Preamble and Questions 1-3 and provide support (or lack of support) and/or comments for this portion. We also discussed several aspects of Question 4, including the purpose of the question; whether the question is different in nature from Questions 1-3; whether or not the question should be included in this questionnaire, a subsequent questionnaire or not at all; the types of responses desired (and the types expected); and the drafting of the question itself. With these topics and seven drafting alternatives (and the ability to pick and choose elements of those alternatives), this required more time than we had left on the call. Therefore, we did not come to any preliminary conclusions on Question 4. The drafting alternatives for Question 4 (including the current version) are in the second draft document (Word and PDF). Please look at the alternatives carefully, particularly if you have not supported sending question 4 in its current form. Please review the options for Question 4 and respond, indicating (a) Which version(s) of Question 4 you could support and which you would object to, and (b) If the answer to (a) is "none," how you would change or combine one or more alternatives in order to support it. We will conclude this discussion on our call of January 10, so please provide your thoughts and responses before then. Thank you. Greg VERSION OF PREAMBLE AND QUESTIONS 1-3 FOR REVIEW PREAMBLE The newly-adopted ICANN bylaws created several Work Stream 2 accountability subgroups. One of them, the subgroup on Jurisdiction, is posing the questions below for community input into the subgroup’s deliberations. As directed by Bylaw Article 27, Section 27.1(b)(vi) <https://www.icann.org/resources/pages/governance/bylaws-en/#article27> and to the extent set forth in the CCWG-Accountability Final Report <https://community.icann.org/pages/viewpage.action?pageId=58723827&preview=/5...> ,[1] the Jurisdiction subgroup is addressing jurisdiction*-related questions, including how choice of jurisdiction and applicable laws for dispute settlement impact ICANN's accountability and the actual operation of policies. To help the subgroup in these endeavors we are asking you to consider and respond to the following specific questions. In this regard, the subgroup is asking for concrete, factual submissions (positive, negative, or neutral) that will help ensure that the subgroup’s deliberations are informed, fact-based, and address real issues. The subgroup is interested in all types of jurisdiction-related factual experiences, not just those involving actual disputes/court cases. QUESTION 1 Has your business, your privacy or your ability to use or purchase domain name-related services been affected by ICANN's jurisdiction* in any way? If the answer is Yes, please describe specific cases, situations or incidents, including the date, the parties involved, and links to any relevant documents. Please note that “affected” may refer to positive and/or negative effects. QUESTION 2 Has ICANN's jurisdiction* affected any dispute resolution process or litigation related to domain names you have been involved in? If the answer is Yes, please describe specific cases, situations or incidents, including the date, the parties involved, and links to any relevant documents. Please note that “affected” may refer to positive and/or negative effects. QUESTION 3 Do you have copies of and/or links to any verifiable reports of experiences of other parties that would be responsive to the questions above? If the answer is yes, please provide these copies and/or links. Please provide either first-person accounts or reliable third-party accounts such as news reports; please do not provide your own version of events. _____ [1] See CCWG-Accountability Main Report, paragraphs 6 and 234, and Annex 12, paragraphs 25-31. * For this Questionnaire, “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. _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction -- ------------ Matthew Shears Global Internet Policy and Human Rights Center for Democracy & Technology (CDT) + 44 771 2472987 <tel:+44%207712%20472987> _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
I agree completely with David and Matthew. In particular this: "DM: Current jurisdiction has worked well for nineteen years and we just finished reorganizing things at great expense to better fit within California with enforceable Empowered Community powers. Is WS2 to change that? MS: That is clearly not this group's mandate." Paul Paul Rosenzweig <mailto:paul.rosenzweig@redbranchconsulting.com> paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 <http://www.redbranchconsulting.com/> www.redbranchconsulting.com My PGP Key: <https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684> https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684 From: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of matthew shears Sent: Sunday, January 8, 2017 2:23 PM To: McAuley, David <dmcauley@verisign.com>; ws2-jurisdiction@icann.org Subject: Re: [Ws2-jurisdiction] Jurisdiction Questionnaire: RESPONSE REQUESTED David, all I am similarly concerned. Please see inline On 07/01/2017 21:55, McAuley, David wrote: In my personal opinion we are wandering blindly into unwise, unacceptable territory - very possibly inviting a quagmire of suppositions and opinions that would pose the near certainty of derailing our work. Agreed and I have a related concern. As far as I am aware we have not defined nor agreed what purpose/end the results of the questionnaire would be put. And how we would deal with the results, what weight the results would be given in determining our direction or way forward, or more importantly, any "findings" of the group (although I am a little at a loss to think how we might agree them). Given the lackluster support for the various alternatives on the last call I am concerned that there seems to be little support, or an acceptable level of comfort, for this approach as a whole. We should not let the perfect be the enemy of the good, but I am unconvinced that the questionnaire as currently proposed could actually lead to a "good" outcome so I don't see the good at peril here. If we conclude that a questionnaire must go out then I support questions 1-3 as widely supported in the survey we did - with no question 4. This would be my preference as well, especially as some of the alternate versions for Q4 seems to go far beyond the relatively limited mandate of this group. If any form of Q4 is to be included it must be fact-based, not opinion-based. Here is what I suggest as a compromise path to resolve the Q4 issue - basically one question in two parts: Are you aware of any material, documented instance(s) where ICANN has been unable to pursue its Mission because of its jurisdiction? If so, please provide documentation. Are you aware of and able to document the existence of an alternative jurisdiction where ICANN would not be so prevented from pursuing its Mission? If so, please provide documentation. Such a questionnaire could of course lead to a full-scale legal due-diligence exercise for suggested alternatives as we recently did with respect to California in Work Stream One (because we would need a demonstration that any such alternative, while possibly solving one perceived problem, did not allow others). Current jurisdiction has worked well for nineteen years and we just finished reorganizing things at great expense to better fit within California with enforceable Empowered Community powers. Is WS2 to change that? That is clearly not this group's mandate. I think we have a different mission than that to accomplish by June. Our mission is essentially to look at settlement of dispute jurisdiction issues and right now that seems like plenty to try to get done by June. Agreed. That Q4 is still under consideration, after failing to gain a clear consensus and even getting substantially less support than question 5 (which basically asked if Q's 1-3 should go out if Q4 was rejected), is puzzling. How can we release Q4 in these circumstances? This is too important to "wing it and let's see what happens." We don't do survey questions for a living. Don't we at least need to guarantee that our questions stay within ICANN's mission and call for answers to do the same? Mathieu, as I recall, said in chat that respondents often go beyond the bounds of what is asked - that tendency itself seems enough to delete Question 4 at the very least. We should just look at the jurisdiction of contracts and dispute settlements, as paragraph 06 of the Final Report puts it. A reasonable place to "restart" our work, I would suggest. Finally, the questionnaire is sensitive enough that we will likely encounter the same debate when we run it by the full CCWG. Most likely. Matthew David David McAuley International Policy Manager Verisign Inc. 703-948-4154 From: ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Greg Shatan Sent: Saturday, January 07, 2017 1:23 PM To: ws2-jurisdiction Subject: [EXTERNAL] [Ws2-jurisdiction] Jurisdiction Questionnaire: RESPONSE REQUESTED All, We made some good progress on our call on Friday, January 6. Following a wide-ranging discussion, we were able to make some headway on refining the draft questionnaire. I encourage those who missed the call to review the recording and notes. Specifically, we came to a preliminary conclusion on revising the Preamble and Question 1, subject to comment on this list and a final discussion on our next call (Tuesday, January 10 at 13:00). Question 2 had no revisions suggested, and Question 3 had only one revision suggested. The Preamble and Questions 1, 2 and 3 (with the proposed revision in "track changes") are in the first document below (Word and PDF documents) and also in text below. Please review this version of the Preamble and Questions 1-3 and provide support (or lack of support) and/or comments for this portion. We also discussed several aspects of Question 4, including the purpose of the question; whether the question is different in nature from Questions 1-3; whether or not the question should be included in this questionnaire, a subsequent questionnaire or not at all; the types of responses desired (and the types expected); and the drafting of the question itself. With these topics and seven drafting alternatives (and the ability to pick and choose elements of those alternatives), this required more time than we had left on the call. Therefore, we did not come to any preliminary conclusions on Question 4. The drafting alternatives for Question 4 (including the current version) are in the second draft document (Word and PDF). Please look at the alternatives carefully, particularly if you have not supported sending question 4 in its current form. Please review the options for Question 4 and respond, indicating (a) Which version(s) of Question 4 you could support and which you would object to, and (b) If the answer to (a) is "none," how you would change or combine one or more alternatives in order to support it. We will conclude this discussion on our call of January 10, so please provide your thoughts and responses before then. Thank you. Greg VERSION OF PREAMBLE AND QUESTIONS 1-3 FOR REVIEW PREAMBLE The newly-adopted ICANN bylaws created several Work Stream 2 accountability subgroups. One of them, the subgroup on Jurisdiction, is posing the questions below for community input into the subgroup's deliberations. As directed by Bylaw Article 27, Section 27.1(b)(vi) <https://www.icann.org/resources/pages/governance/bylaws-en/#article27> and to the extent set forth in the CCWG-Accountability Final Report <https://community.icann.org/pages/viewpage.action?pageId=58723827&preview=/ 58723827/58726532/Main%20Report%20-%20FINAL-Revised.pdf> ,[1] the Jurisdiction subgroup is addressing jurisdiction*-related questions, including how choice of jurisdiction and applicable laws for dispute settlement impact ICANN's accountability and the actual operation of policies. To help the subgroup in these endeavors we are asking you to consider and respond to the following specific questions. In this regard, the subgroup is asking for concrete, factual submissions (positive, negative, or neutral) that will help ensure that the subgroup's deliberations are informed, fact-based, and address real issues. The subgroup is interested in all types of jurisdiction-related factual experiences, not just those involving actual disputes/court cases. QUESTION 1 Has your business, your privacy or your ability to use or purchase domain name-related services been affected by ICANN's jurisdiction* in any way? If the answer is Yes, please describe specific cases, situations or incidents, including the date, the parties involved, and links to any relevant documents. Please note that "affected" may refer to positive and/or negative effects. QUESTION 2 Has ICANN's jurisdiction* affected any dispute resolution process or litigation related to domain names you have been involved in? If the answer is Yes, please describe specific cases, situations or incidents, including the date, the parties involved, and links to any relevant documents. Please note that "affected" may refer to positive and/or negative effects. QUESTION 3 Do you have copies of and/or links to any verifiable reports of experiences of other parties that would be responsive to the questions above? If the answer is yes, please provide these copies and/or links. Please provide either first-person accounts or reliable third-party accounts such as news reports; please do not provide your own version of events. _____ [1] See CCWG-Accountability Main Report, paragraphs 6 and 234, and Annex 12, paragraphs 25-31. * For this Questionnaire, "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. _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction -- ------------ Matthew Shears Global Internet Policy and Human Rights Center for Democracy & Technology (CDT) + 44 771 2472987
On our prior Jurisdiction call, I did not support the proposed question 4 or any of the 7 alternatives. But I'd like to support David McAuley’s restatement of question 4 (below) as a compromise that could allow us to gather useful evidence and information — not just opinions. Are you aware of any material, documented instance(s) where ICANN has been unable to pursue its Mission because of its jurisdiction? If so, please provide documentation. Are you aware of and able to document the existence of an alternative jurisdiction where ICANN would not be so prevented from pursuing its Mission? If so, please provide documentation. From: <ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org>> on behalf of Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>> Date: Monday, January 9, 2017 at 2:03 PM I agree completely with David and Matthew. In particular this: “DM: Current jurisdiction has worked well for nineteen years and we just finished reorganizing things at great expense to better fit within California with enforceable Empowered Community powers. Is WS2 to change that? MS: That is clearly not this group's mandate.” Paul From: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of matthew shears Sent: Sunday, January 8, 2017 2:23 PM David, all I am similarly concerned. Please see inline On 07/01/2017 21:55, McAuley, David wrote: In my personal opinion we are wandering blindly into unwise, unacceptable territory – very possibly inviting a quagmire of suppositions and opinions that would pose the near certainty of derailing our work. Agreed and I have a related concern. As far as I am aware we have not defined nor agreed what purpose/end the results of the questionnaire would be put. And how we would deal with the results, what weight the results would be given in determining our direction or way forward, or more importantly, any "findings" of the group (although I am a little at a loss to think how we might agree them). Given the lackluster support for the various alternatives on the last call I am concerned that there seems to be little support, or an acceptable level of comfort, for this approach as a whole. We should not let the perfect be the enemy of the good, but I am unconvinced that the questionnaire as currently proposed could actually lead to a “good” outcome so I don’t see the good at peril here. If we conclude that a questionnaire must go out then I support questions 1-3 as widely supported in the survey we did – with no question 4. This would be my preference as well, especially as some of the alternate versions for Q4 seems to go far beyond the relatively limited mandate of this group. If any form of Q4 is to be included it must be fact-based, not opinion-based. Here is what I suggest as a compromise path to resolve the Q4 issue – basically one question in two parts: Are you aware of any material, documented instance(s) where ICANN has been unable to pursue its Mission because of its jurisdiction? If so, please provide documentation. Are you aware of and able to document the existence of an alternative jurisdiction where ICANN would not be so prevented from pursuing its Mission? If so, please provide documentation. Such a questionnaire could of course lead to a full-scale legal due-diligence exercise for suggested alternatives as we recently did with respect to California in Work Stream One (because we would need a demonstration that any such alternative, while possibly solving one perceived problem, did not allow others). Current jurisdiction has worked well for nineteen years and we just finished reorganizing things at great expense to better fit within California with enforceable Empowered Community powers. Is WS2 to change that? That is clearly not this group's mandate. I think we have a different mission than that to accomplish by June. Our mission is essentially to look at settlement of dispute jurisdiction issues and right now that seems like plenty to try to get done by June. Agreed. That Q4 is still under consideration, after failing to gain a clear consensus and even getting substantially less support than question 5 (which basically asked if Q’s 1-3 should go out if Q4 was rejected), is puzzling. How can we release Q4 in these circumstances? This is too important to “wing it and let’s see what happens.” We don’t do survey questions for a living. Don’t we at least need to guarantee that our questions stay within ICANN’s mission and call for answers to do the same? Mathieu, as I recall, said in chat that respondents often go beyond the bounds of what is asked – that tendency itself seems enough to delete Question 4 at the very least. We should just look at the jurisdiction of contracts and dispute settlements, as paragraph 06 of the Final Report puts it. A reasonable place to "restart" our work, I would suggest. Finally, the questionnaire is sensitive enough that we will likely encounter the same debate when we run it by the full CCWG. Most likely. Matthew David David McAuley International Policy Manager Verisign Inc. 703-948-4154 From:ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Greg Shatan Sent: Saturday, January 07, 2017 1:23 PM To: ws2-jurisdiction Subject: [EXTERNAL] [Ws2-jurisdiction] Jurisdiction Questionnaire: RESPONSE REQUESTED All, We made some good progress on our call on Friday, January 6. Following a wide-ranging discussion, we were able to make some headway on refining the draft questionnaire. I encourage those who missed the call to review the recording and notes. Specifically, we came to a preliminary conclusion on revising the Preamble and Question 1, subject to comment on this list and a final discussion on our next call (Tuesday, January 10 at 13:00). Question 2 had no revisions suggested, and Question 3 had only one revision suggested. The Preamble and Questions 1, 2 and 3 (with the proposed revision in "track changes") are in the first document below (Word and PDF documents) and also in text below. Please review this version of the Preamble and Questions 1-3 and provide support (or lack of support) and/or comments for this portion. We also discussed several aspects of Question 4, including the purpose of the question; whether the question is different in nature from Questions 1-3; whether or not the question should be included in this questionnaire, a subsequent questionnaire or not at all; the types of responses desired (and the types expected); and the drafting of the question itself. With these topics and seven drafting alternatives (and the ability to pick and choose elements of those alternatives), this required more time than we had left on the call. Therefore, we did not come to any preliminary conclusions on Question 4. The drafting alternatives for Question 4 (including the current version) are in the second draft document (Word and PDF). Please look at the alternatives carefully, particularly if you have not supported sending question 4 in its current form. Please review the options for Question 4 and respond, indicating (a) Which version(s) of Question 4 you could support and which you would object to, and (b) If the answer to (a) is "none," how you would change or combine one or more alternatives in order to support it. We will conclude this discussion on our call of January 10, so please provide your thoughts and responses before then. Thank you. Greg VERSION OF PREAMBLE AND QUESTIONS 1-3 FOR REVIEW PREAMBLE The newly-adopted ICANN bylaws created several Work Stream 2 accountability subgroups. One of them, the subgroup on Jurisdiction, is posing the questions below for community input into the subgroup’s deliberations. As directed by Bylaw Article 27, Section 27.1(b)(vi)<https://www.icann.org/resources/pages/governance/bylaws-en/#article27> and to the extent set forth in the CCWG-Accountability Final Report<https://community.icann.org/pages/viewpage.action?pageId=58723827&preview=/58723827/58726532/Main%20Report%20-%20FINAL-Revised.pdf>,[1] the Jurisdiction subgroup is addressing jurisdiction*-related questions, including how choice of jurisdiction and applicable laws for dispute settlement impact ICANN's accountability and the actual operation of policies. To help the subgroup in these endeavors we are asking you to consider and respond to the following specific questions. In this regard, the subgroup is asking for concrete, factual submissions (positive, negative, or neutral) that will help ensure that the subgroup’s deliberations are informed, fact-based, and address real issues. The subgroup is interested in all types of jurisdiction-related factual experiences, not just those involving actual disputes/court cases. QUESTION 1 Has your business, your privacy or your ability to use or purchase domain name-related services been affected by ICANN's jurisdiction* in any way? If the answer is Yes, please describe specific cases, situations or incidents, including the date, the parties involved, and links to any relevant documents. Please note that “affected” may refer to positive and/or negative effects. QUESTION 2 Has ICANN's jurisdiction* affected any dispute resolution process or litigation related to domain names you have been involved in? If the answer is Yes, please describe specific cases, situations or incidents, including the date, the parties involved, and links to any relevant documents. Please note that “affected” may refer to positive and/or negative effects. QUESTION 3 Do you have copies of and/or links to any verifiable reports of experiences of other parties that would be responsive to the questions above? If the answer is yes, please provide these copies and/or links. Please provide either first-person accounts or reliable third-party accounts such as news reports; please do not provide your own version of events. ________________________________ [1]See CCWG-Accountability Main Report, paragraphs 6 and 234, and Annex 12, paragraphs 25-31. * For this Questionnaire, “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.
Greg, all Apologies but I will be in transit at the time of the call today. W/r/t Q 4. I do not support the alternatives proposed to date. I can, however, see some utility in the version of question 4 proposed by David below and would support. Matthew On 09/01/2017 21:17, Steve DelBianco wrote:
On our prior Jurisdiction call, I did not support the proposed question 4 or any of the 7 alternatives.
But I'd like to support David McAuley’s restatement of question 4 (below) as a compromise that could allow us to gather useful evidence and information — not just opinions.
/Are you aware of any material, documented instance(s) where ICANN has been unable to pursue its Mission because of its jurisdiction? If so, please provide documentation./
//
/Are you aware of and able to document the existence of an alternative jurisdiction where ICANN would not be so prevented from pursuing its Mission? If so, please provide documentation./
From: <ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org>> on behalf of Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com>> Date: Monday, January 9, 2017 at 2:03 PM
I agree completely with David and Matthew. In particular this:
“DM: Current jurisdiction has worked well for nineteen years and we just finished reorganizing things at great expense to better fit within California with enforceable Empowered Community powers. Is WS2 to change that?
MS: That is clearly not this group's mandate.”
Paul
*From:*ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] *On Behalf Of *matthew shears *Sent:* Sunday, January 8, 2017 2:23 PM
David, all
I am similarly concerned. Please see inline
On 07/01/2017 21:55, McAuley, David wrote:
In my personal opinion we are wandering blindly into unwise, unacceptable territory – very possibly inviting a quagmire of suppositions and opinions that would pose the near certainty of derailing our work.
Agreed and I have a related concern. As far as I am aware we have not defined nor agreed what purpose/end the results of the questionnaire would be put. And how we would deal with the results, what weight the results would be given in determining our direction or way forward, or more importantly, any "findings" of the group (although I am a little at a loss to think how we might agree them).
Given the lackluster support for the various alternatives on the last call I am concerned that there seems to be little support, or an acceptable level of comfort, for this approach as a whole.
We should not let the perfect be the enemy of the good, but I am unconvinced that the questionnaire as currently proposed could actually lead to a “good” outcome so I don’t see the good at peril here.
If we conclude that a questionnaire must go out then I support questions 1-3 as widely supported in the survey we did – with no question 4.
This would be my preference as well, especially as some of the alternate versions for Q4 seems to go far beyond the relatively limited mandate of this group.
If any form of Q4 is to be included it must be fact-based, not opinion-based. Here is what I suggest as a compromise path to resolve the Q4 issue – basically one question in two parts:
//
/Are you aware of any material, documented instance(s) where ICANN has been unable to pursue its Mission because of its jurisdiction? If so, please provide documentation./
//
/Are you aware of and able to document the existence of an alternative jurisdiction where ICANN would not be so prevented from pursuing its Mission? If so, please provide documentation./
Such a questionnaire could of course lead to a full-scale legal due-diligence exercise for suggested alternatives as we recently did with respect to California in Work Stream One (because we would need a demonstration that any such alternative, while possibly solving one perceived problem, did not allow others).
Current jurisdiction has worked well for nineteen years and we just finished reorganizing things at great expense to better fit within California with enforceable Empowered Community powers. Is WS2 to change that?
That is clearly not this group's mandate.
I think we have a different mission than that to accomplish by June. Our mission is essentially to look at settlement of dispute jurisdiction issues and right now that seems like plenty to try to get done by June.
Agreed.
That Q4 is still under consideration, after failing to gain a clear consensus and even getting substantially less support than question 5 (which basically asked if Q’s 1-3 should go out if Q4 was rejected), is puzzling. How can we release Q4 in these circumstances?
This is too important to “wing it and let’s see what happens.” We don’t do survey questions for a living. Don’t we at least need to guarantee that our questions stay within ICANN’s mission and call for answers to do the same? Mathieu, as I recall, said in chat that respondents often go beyond the bounds of what is asked – that tendency itself seems enough to delete Question 4 at the very least.
We should just look at the jurisdiction of contracts and dispute settlements, as paragraph 06 of the Final Report puts it.
A reasonable place to "restart" our work, I would suggest.
Finally, the questionnaire is sensitive enough that we will likely encounter the same debate when we run it by the full CCWG.
Most likely.
Matthew
David
David McAuley
International Policy Manager
Verisign Inc.
703-948-4154
*From:*ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] *On Behalf Of *Greg Shatan *Sent:* Saturday, January 07, 2017 1:23 PM *To:* ws2-jurisdiction *Subject:* [EXTERNAL] [Ws2-jurisdiction] Jurisdiction Questionnaire: RESPONSE REQUESTED
All,
We made some good progress on our call on Friday, January 6. Following a wide-ranging discussion, we were able to make some headway on refining the draft questionnaire. I encourage those who missed the call to review the recording and notes.
Specifically, we came to a preliminary conclusion on revising the Preamble and Question 1, subject to comment on this list and a final discussion on our next call (Tuesday, January 10 at 13:00). Question 2 had no revisions suggested, and Question 3 had only one revision suggested.
The Preamble and Questions 1, 2 and 3 (with the proposed revision in "track changes") are in the first document below (Word and PDF documents) and also in text below. *Please review this version of the Preamble and Questions 1-3 and provide support (or lack of support) and/or comments for this portion.*
We also discussed several aspects of Question 4, including the purpose of the question; whether the question is different in nature from Questions 1-3; whether or not the question should be included in this questionnaire, a subsequent questionnaire or not at all; the types of responses desired (and the types expected); and the drafting of the question itself. With these topics and seven drafting alternatives (and the ability to pick and choose elements of those alternatives), this required more time than we had left on the call. Therefore, we did not come to any preliminary conclusions on Question 4.
The drafting alternatives for Question 4 (including the current version) are in the second draft document (Word and PDF). Please look at the alternatives carefully, particularly if you have not supported sending question 4 in its current form. * Please review the options for Question 4 and respond, indicating (a) Which version(s) of Question 4 you could support and which you would object to, and (b) If the answer to (a) is "none," how you would change or combine one or more alternatives in order to support it.*
We will conclude this discussion on our call of January 10, so please provide your thoughts and responses before then. Thank you.
Greg
*VERSION OF PREAMBLE AND QUESTIONS 1-3 FOR REVIEW*
*PREAMBLE*
The newly-adopted ICANN bylaws created several Work Stream 2 accountability subgroups. One of them, the subgroup on Jurisdiction, is posing the questions below for community input into the subgroup’s deliberations.
As directed by Bylaw Article 27, Section 27.1(b)(vi) <https://www.icann.org/resources/pages/governance/bylaws-en/#article27> and to the extent set forth in the CCWG-Accountability Final Report <https://community.icann.org/pages/viewpage.action?pageId=58723827&preview=/58723827/58726532/Main%20Report%20-%20FINAL-Revised.pdf>,[1] the Jurisdiction subgroup is addressing jurisdiction*-related questions, including how choice of jurisdiction and applicable laws for dispute settlement impact ICANN's accountability and the actual operation of policies.
To help the subgroup in these endeavors we are asking you to consider and respond to the following specific questions. In this regard, the subgroup is asking for concrete, factual submissions (positive, negative, or neutral) that will help ensure that the subgroup’s deliberations are informed, fact-based, and address real issues. The subgroup is interested in all types of jurisdiction-related factual experiences, not just those involving actual disputes/court cases.
*QUESTION 1*
Has your business, your privacy or your ability to use or purchase domain name-related services been affected by ICANN's jurisdiction* in any way?
If the answer is Yes, please describe specific cases, situations or incidents, including the date, the parties involved, and links to any relevant documents. Please note that “affected” may refer to positive and/or negative effects.
*QUESTION 2*
Has ICANN's jurisdiction* affected any dispute resolution process or litigation related to domain names you have been involved in?
If the answer is Yes, please describe specific cases, situations or incidents, including the date, the parties involved, and links to any relevant documents. Please note that “affected” may refer to positive and/or negative effects.
*QUESTION 3*
Do you have copies of and/or links to any verifiable reports of experiences of other parties that would be responsive to the questions above?
If the answer is yes, please provide these copies and/or links.Please provide either first-person accounts or reliable third-party accounts such as news reports; please do not provide your own version of events.
------------------------------------------------------------------------
[1]_See_ CCWG-Accountability Main Report, paragraphs 6 and 234, and Annex 12, paragraphs 25-31.
* For this Questionnaire, “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.
-- ------------ Matthew Shears Global Internet Policy and Human Rights Center for Democracy & Technology (CDT) + 44 771 2472987
And my apologies as I am likewise in transit. Becky Burr Sent from my iPhone On Jan 10, 2017, at 04:49, matthew shears <mshears@cdt.org<mailto:mshears@cdt.org>> wrote: Greg, all Apologies but I will be in transit at the time of the call today. W/r/t Q 4. I do not support the alternatives proposed to date. I can, however, see some utility in the version of question 4 proposed by David below and would support. Matthew On 09/01/2017 21:17, Steve DelBianco wrote: On our prior Jurisdiction call, I did not support the proposed question 4 or any of the 7 alternatives. But I'd like to support David McAuley’s restatement of question 4 (below) as a compromise that could allow us to gather useful evidence and information — not just opinions. Are you aware of any material, documented instance(s) where ICANN has been unable to pursue its Mission because of its jurisdiction? If so, please provide documentation. Are you aware of and able to document the existence of an alternative jurisdiction where ICANN would not be so prevented from pursuing its Mission? If so, please provide documentation. From: <ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org>> on behalf of Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>> Date: Monday, January 9, 2017 at 2:03 PM I agree completely with David and Matthew. In particular this: “DM: Current jurisdiction has worked well for nineteen years and we just finished reorganizing things at great expense to better fit within California with enforceable Empowered Community powers. Is WS2 to change that? MS: That is clearly not this group's mandate.” Paul From: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of matthew shears Sent: Sunday, January 8, 2017 2:23 PM David, all I am similarly concerned. Please see inline On 07/01/2017 21:55, McAuley, David wrote: In my personal opinion we are wandering blindly into unwise, unacceptable territory – very possibly inviting a quagmire of suppositions and opinions that would pose the near certainty of derailing our work. Agreed and I have a related concern. As far as I am aware we have not defined nor agreed what purpose/end the results of the questionnaire would be put. And how we would deal with the results, what weight the results would be given in determining our direction or way forward, or more importantly, any "findings" of the group (although I am a little at a loss to think how we might agree them). Given the lackluster support for the various alternatives on the last call I am concerned that there seems to be little support, or an acceptable level of comfort, for this approach as a whole. We should not let the perfect be the enemy of the good, but I am unconvinced that the questionnaire as currently proposed could actually lead to a “good” outcome so I don’t see the good at peril here. If we conclude that a questionnaire must go out then I support questions 1-3 as widely supported in the survey we did – with no question 4. This would be my preference as well, especially as some of the alternate versions for Q4 seems to go far beyond the relatively limited mandate of this group. If any form of Q4 is to be included it must be fact-based, not opinion-based. Here is what I suggest as a compromise path to resolve the Q4 issue – basically one question in two parts: Are you aware of any material, documented instance(s) where ICANN has been unable to pursue its Mission because of its jurisdiction? If so, please provide documentation. Are you aware of and able to document the existence of an alternative jurisdiction where ICANN would not be so prevented from pursuing its Mission? If so, please provide documentation. Such a questionnaire could of course lead to a full-scale legal due-diligence exercise for suggested alternatives as we recently did with respect to California in Work Stream One (because we would need a demonstration that any such alternative, while possibly solving one perceived problem, did not allow others). Current jurisdiction has worked well for nineteen years and we just finished reorganizing things at great expense to better fit within California with enforceable Empowered Community powers. Is WS2 to change that? That is clearly not this group's mandate. I think we have a different mission than that to accomplish by June. Our mission is essentially to look at settlement of dispute jurisdiction issues and right now that seems like plenty to try to get done by June. Agreed. That Q4 is still under consideration, after failing to gain a clear consensus and even getting substantially less support than question 5 (which basically asked if Q’s 1-3 should go out if Q4 was rejected), is puzzling. How can we release Q4 in these circumstances? This is too important to “wing it and let’s see what happens.” We don’t do survey questions for a living. Don’t we at least need to guarantee that our questions stay within ICANN’s mission and call for answers to do the same? Mathieu, as I recall, said in chat that respondents often go beyond the bounds of what is asked – that tendency itself seems enough to delete Question 4 at the very least. We should just look at the jurisdiction of contracts and dispute settlements, as paragraph 06 of the Final Report puts it. A reasonable place to "restart" our work, I would suggest. Finally, the questionnaire is sensitive enough that we will likely encounter the same debate when we run it by the full CCWG. Most likely. Matthew David David McAuley International Policy Manager Verisign Inc. 703-948-4154 From:ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Greg Shatan Sent: Saturday, January 07, 2017 1:23 PM To: ws2-jurisdiction Subject: [EXTERNAL] [Ws2-jurisdiction] Jurisdiction Questionnaire: RESPONSE REQUESTED All, We made some good progress on our call on Friday, January 6. Following a wide-ranging discussion, we were able to make some headway on refining the draft questionnaire. I encourage those who missed the call to review the recording and notes. Specifically, we came to a preliminary conclusion on revising the Preamble and Question 1, subject to comment on this list and a final discussion on our next call (Tuesday, January 10 at 13:00). Question 2 had no revisions suggested, and Question 3 had only one revision suggested. The Preamble and Questions 1, 2 and 3 (with the proposed revision in "track changes") are in the first document below (Word and PDF documents) and also in text below. Please review this version of the Preamble and Questions 1-3 and provide support (or lack of support) and/or comments for this portion. We also discussed several aspects of Question 4, including the purpose of the question; whether the question is different in nature from Questions 1-3; whether or not the question should be included in this questionnaire, a subsequent questionnaire or not at all; the types of responses desired (and the types expected); and the drafting of the question itself. With these topics and seven drafting alternatives (and the ability to pick and choose elements of those alternatives), this required more time than we had left on the call. Therefore, we did not come to any preliminary conclusions on Question 4. The drafting alternatives for Question 4 (including the current version) are in the second draft document (Word and PDF). Please look at the alternatives carefully, particularly if you have not supported sending question 4 in its current form. Please review the options for Question 4 and respond, indicating (a) Which version(s) of Question 4 you could support and which you would object to, and (b) If the answer to (a) is "none," how you would change or combine one or more alternatives in order to support it. We will conclude this discussion on our call of January 10, so please provide your thoughts and responses before then. Thank you. Greg VERSION OF PREAMBLE AND QUESTIONS 1-3 FOR REVIEW PREAMBLE The newly-adopted ICANN bylaws created several Work Stream 2 accountability subgroups. One of them, the subgroup on Jurisdiction, is posing the questions below for community input into the subgroup’s deliberations. As directed by Bylaw Article 27, Section 27.1(b)(vi)<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_resources...> and to the extent set forth in the CCWG-Accountability Final Report<https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_pages_viewpage.action-3FpageId-3D58723827-26preview-3D_58723827_58726532_Main-2520Report-2520-2D-2520FINAL-2DRevised.pdf&d=DwMDaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=zL9sADzOvS3LjsqTgZF4638yKXd1IvHmF2-fJmlpBKQ&s=ChxsV8vGnfsY2lyfDG66-p0IKtTflARpsv8PwzkoekE&e=>,[1] the Jurisdiction subgroup is addressing jurisdiction*-related questions, including how choice of jurisdiction and applicable laws for dispute settlement impact ICANN's accountability and the actual operation of policies. To help the subgroup in these endeavors we are asking you to consider and respond to the following specific questions. In this regard, the subgroup is asking for concrete, factual submissions (positive, negative, or neutral) that will help ensure that the subgroup’s deliberations are informed, fact-based, and address real issues. The subgroup is interested in all types of jurisdiction-related factual experiences, not just those involving actual disputes/court cases. QUESTION 1 Has your business, your privacy or your ability to use or purchase domain name-related services been affected by ICANN's jurisdiction* in any way? If the answer is Yes, please describe specific cases, situations or incidents, including the date, the parties involved, and links to any relevant documents. Please note that “affected” may refer to positive and/or negative effects. QUESTION 2 Has ICANN's jurisdiction* affected any dispute resolution process or litigation related to domain names you have been involved in? If the answer is Yes, please describe specific cases, situations or incidents, including the date, the parties involved, and links to any relevant documents. Please note that “affected” may refer to positive and/or negative effects. QUESTION 3 Do you have copies of and/or links to any verifiable reports of experiences of other parties that would be responsive to the questions above? If the answer is yes, please provide these copies and/or links. Please provide either first-person accounts or reliable third-party accounts such as news reports; please do not provide your own version of events. ________________________________ [1]See CCWG-Accountability Main Report, paragraphs 6 and 234, and Annex 12, paragraphs 25-31. * For this Questionnaire, “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. -- ------------ Matthew Shears Global Internet Policy and Human Rights Center for Democracy & Technology (CDT) + 44 771 2472987 _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_li...
Dear Greg, I am sorry to inform you that the term «mission» which either you or someone else has deleted from the proposed text is absolutely necessary. Moreover, in the second paragraph, reference is made to «prevent" whereas in the first paragraph that term «prevent" does not exist. Please also add that after you reinsert mission, the term “or prevented *this is also necessary as the jurisdiction issue is not merely limited to ICANN policy and accountability Kavouss 2017-01-10 13:28 GMT+01:00 Burr, Becky <Becky.Burr@neustar.biz>:
And my apologies as I am likewise in transit.
Becky Burr Sent from my iPhone
On Jan 10, 2017, at 04:49, matthew shears <mshears@cdt.org> wrote:
Greg, all
Apologies but I will be in transit at the time of the call today.
W/r/t Q 4. I do not support the alternatives proposed to date. I can, however, see some utility in the version of question 4 proposed by David below and would support.
Matthew
On 09/01/2017 21:17, Steve DelBianco wrote:
On our prior Jurisdiction call, I did not support the proposed question 4 or any of the 7 alternatives.
But I'd like to support David McAuley’s restatement of question 4 (below) as a compromise that could allow us to gather useful evidence and information — not just opinions.
*Are you aware of any material, documented instance(s) where ICANN has been unable to pursue its Mission because of its jurisdiction? If so, please provide documentation.*
*Are you aware of and able to document the existence of an alternative jurisdiction where ICANN would not be so prevented from pursuing its Mission? If so, please provide documentation.*
From: <ws2-jurisdiction-bounces@icann.org> on behalf of Paul Rosenzweig < paul.rosenzweig@redbranchconsulting.com> Date: Monday, January 9, 2017 at 2:03 PM
I agree completely with David and Matthew. In particular this:
“DM: Current jurisdiction has worked well for nineteen years and we just finished reorganizing things at great expense to better fit within California with enforceable Empowered Community powers. Is WS2 to change that?
MS: That is clearly not this group's mandate.”
Paul
*From:* ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction- bounces@icann.org <ws2-jurisdiction-bounces@icann.org>] *On Behalf Of *matthew shears *Sent:* Sunday, January 8, 2017 2:23 PM
David, all
I am similarly concerned. Please see inline
On 07/01/2017 21:55, McAuley, David wrote:
In my personal opinion we are wandering blindly into unwise, unacceptable territory – very possibly inviting a quagmire of suppositions and opinions that would pose the near certainty of derailing our work.
Agreed and I have a related concern. As far as I am aware we have not defined nor agreed what purpose/end the results of the questionnaire would be put. And how we would deal with the results, what weight the results would be given in determining our direction or way forward, or more importantly, any "findings" of the group (although I am a little at a loss to think how we might agree them).
Given the lackluster support for the various alternatives on the last call I am concerned that there seems to be little support, or an acceptable level of comfort, for this approach as a whole.
We should not let the perfect be the enemy of the good, but I am unconvinced that the questionnaire as currently proposed could actually lead to a “good” outcome so I don’t see the good at peril here.
If we conclude that a questionnaire must go out then I support questions 1-3 as widely supported in the survey we did – with no question 4.
This would be my preference as well, especially as some of the alternate versions for Q4 seems to go far beyond the relatively limited mandate of this group.
If any form of Q4 is to be included it must be fact-based, not opinion-based. Here is what I suggest as a compromise path to resolve the Q4 issue – basically one question in two parts:
*Are you aware of any material, documented instance(s) where ICANN has been unable to pursue its Mission because of its jurisdiction? If so, please provide documentation.*
*Are you aware of and able to document the existence of an alternative jurisdiction where ICANN would not be so prevented from pursuing its Mission? If so, please provide documentation.*
Such a questionnaire could of course lead to a full-scale legal due-diligence exercise for suggested alternatives as we recently did with respect to California in Work Stream One (because we would need a demonstration that any such alternative, while possibly solving one perceived problem, did not allow others).
Current jurisdiction has worked well for nineteen years and we just finished reorganizing things at great expense to better fit within California with enforceable Empowered Community powers. Is WS2 to change that?
That is clearly not this group's mandate.
I think we have a different mission than that to accomplish by June. Our mission is essentially to look at settlement of dispute jurisdiction issues and right now that seems like plenty to try to get done by June.
Agreed.
That Q4 is still under consideration, after failing to gain a clear consensus and even getting substantially less support than question 5 (which basically asked if Q’s 1-3 should go out if Q4 was rejected), is puzzling. How can we release Q4 in these circumstances?
This is too important to “wing it and let’s see what happens.” We don’t do survey questions for a living. Don’t we at least need to guarantee that our questions stay within ICANN’s mission and call for answers to do the same? Mathieu, as I recall, said in chat that respondents often go beyond the bounds of what is asked – that tendency itself seems enough to delete Question 4 at the very least.
We should just look at the jurisdiction of contracts and dispute settlements, as paragraph 06 of the Final Report puts it.
A reasonable place to "restart" our work, I would suggest.
Finally, the questionnaire is sensitive enough that we will likely encounter the same debate when we run it by the full CCWG.
Most likely.
Matthew
David
David McAuley
International Policy Manager
Verisign Inc.
703-948-4154 <(703)%20948-4154>
*From:*ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction- bounces@icann.org <ws2-jurisdiction-bounces@icann.org>] *On Behalf Of *Greg Shatan *Sent:* Saturday, January 07, 2017 1:23 PM *To:* ws2-jurisdiction *Subject:* [EXTERNAL] [Ws2-jurisdiction] Jurisdiction Questionnaire: RESPONSE REQUESTED
All,
We made some good progress on our call on Friday, January 6. Following a wide-ranging discussion, we were able to make some headway on refining the draft questionnaire. I encourage those who missed the call to review the recording and notes.
Specifically, we came to a preliminary conclusion on revising the Preamble and Question 1, subject to comment on this list and a final discussion on our next call (Tuesday, January 10 at 13:00). Question 2 had no revisions suggested, and Question 3 had only one revision suggested.
The Preamble and Questions 1, 2 and 3 (with the proposed revision in "track changes") are in the first document below (Word and PDF documents) and also in text below. *Please review this version of the Preamble and Questions 1-3 and provide support (or lack of support) and/or comments for this portion.*
We also discussed several aspects of Question 4, including the purpose of the question; whether the question is different in nature from Questions 1-3; whether or not the question should be included in this questionnaire, a subsequent questionnaire or not at all; the types of responses desired (and the types expected); and the drafting of the question itself. With these topics and seven drafting alternatives (and the ability to pick and choose elements of those alternatives), this required more time than we had left on the call. Therefore, we did not come to any preliminary conclusions on Question 4.
The drafting alternatives for Question 4 (including the current version) are in the second draft document (Word and PDF). Please look at the alternatives carefully, particularly if you have not supported sending question 4 in its current form. * Please review the options for Question 4 and respond, indicating (a) Which version(s) of Question 4 you could support and which you would object to, and (b) If the answer to (a) is "none," how you would change or combine one or more alternatives in order to support it.*
We will conclude this discussion on our call of January 10, so please provide your thoughts and responses before then. Thank you.
Greg
*VERSION OF PREAMBLE AND QUESTIONS 1-3 FOR REVIEW*
*PREAMBLE*
The newly-adopted ICANN bylaws created several Work Stream 2 accountability subgroups. One of them, the subgroup on Jurisdiction, is posing the questions below for community input into the subgroup’s deliberations.
As directed by Bylaw Article 27, Section 27.1(b)(vi) <https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_resources...> and to the extent set forth in the CCWG-Accountability Final Report <https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_pag...> ,[1] the Jurisdiction subgroup is addressing jurisdiction*-related questions, including how choice of jurisdiction and applicable laws for dispute settlement impact ICANN's accountability and the actual operation of policies.
To help the subgroup in these endeavors we are asking you to consider and respond to the following specific questions. In this regard, the subgroup is asking for concrete, factual submissions (positive, negative, or neutral) that will help ensure that the subgroup’s deliberations are informed, fact-based, and address real issues. The subgroup is interested in all types of jurisdiction-related factual experiences, not just those involving actual disputes/court cases.
*QUESTION 1*
Has your business, your privacy or your ability to use or purchase domain name-related services been affected by ICANN's jurisdiction* in any way?
If the answer is Yes, please describe specific cases, situations or incidents, including the date, the parties involved, and links to any relevant documents. Please note that “affected” may refer to positive and/or negative effects.
*QUESTION 2*
Has ICANN's jurisdiction* affected any dispute resolution process or litigation related to domain names you have been involved in?
If the answer is Yes, please describe specific cases, situations or incidents, including the date, the parties involved, and links to any relevant documents. Please note that “affected” may refer to positive and/or negative effects.
*QUESTION 3*
Do you have copies of and/or links to any verifiable reports of experiences of other parties that would be responsive to the questions above?
If the answer is yes, please provide these copies and/or links. Please provide either first-person accounts or reliable third-party accounts such as news reports; please do not provide your own version of events.
------------------------------
[1]*See* CCWG-Accountability Main Report, paragraphs 6 and 234, and Annex 12, paragraphs 25-31.
* For this Questionnaire, “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.
-- ------------ Matthew Shears Global Internet Policy and Human Rights Center for Democracy & Technology (CDT)+ 44 771 2472987 <+44%207712%20472987>
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Likewise stuck offline. . Agree with Matt -- Paul Rosenzweig Sent from myMail app for Android Tuesday, 10 January 2017, 04:49AM -05:00 from matthew shears mshears@cdt.org :
Greg, all Apologies but I will be in transit at the time of the call today. W/r/t Q 4. I do not support the alternatives proposed to date. I can, however, see some utility in the version of question 4 proposed by David below and would support. Matthew
On 09/01/2017 21:17, Steve DelBianco wrote:
On our prior Jurisdiction call, I did not support the proposed question 4 or any of the 7 alternatives.
But I'd like to support David McAuley’s restatement of question 4 (below) as a compromise that could allow us to gather useful evidence and information — not just opinions.
Are you aware of any material, documented instance(s) where ICANN has been unable to pursue its Mission because of its jurisdiction? If so, please provide documentation. Are you aware of and able to document the existence of an alternative jurisdiction where ICANN would not be so prevented from pursuing its Mission? If so, please provide documentation.
From: < ws2-jurisdiction-bounces@icann.org > on behalf of Paul Rosenzweig < paul.rosenzweig@redbranchconsulting.com > Date: Monday, January 9, 2017 at 2:03 PM
I agree completely with David and Matthew. In particular this: “DM: Current jurisdiction has worked well for nineteen years and we just finished reorganizing things at great expense to better fit within California with enforceable Empowered Community powers. Is WS2 to change that?
MS: That is clearly not this group's mandate.” Paul From: ws2-jurisdiction-bounces@icann.org [ mailto:ws2-jurisdiction-bounces@icann.org ] On Behalf Of matthew shears Sent: Sunday, January 8, 2017 2:23 PM
David, all I am similarly concerned. Please see inline On 07/01/2017 21:55, McAuley, David wrote:
In my personal opinion we are wandering blindly into unwise, unacceptable territory – very possibly inviting a quagmire of suppositions and opinions that would pose the near certainty of derailing our work.
Agreed and I have a related concern. As far as I am aware we have not defined nor agreed what purpose/end the results of the questionnaire would be put. And how we would deal with the results, what weight the results would be given in determining our direction or way forward, or more importantly, any "findings" of the group (although I am a little at a loss to think how we might agree them).
Given the lackluster support for the various alternatives on the last call I am concerned that there seems to be little support, or an acceptable level of comfort, for this approach as a whole.
We
should not let the perfect be the enemy of the good, but I am unconvinced that the questionnaire as currently proposed could actually lead to a “good” outcome so I don’t see the good at peril here.
If we conclude that a questionnaire must go out then I support questions 1-3 as widely supported in the survey we did – with no question 4.
This would be my preference as well, especially as some of the alternate versions for Q4 seems to go far beyond the relatively limited mandate of this group.
If any form of Q4 is to be included it must be fact-based, not opinion-based. Here is what I suggest as a compromise path to resolve the Q4 issue – basically one question in two parts: Are you aware of any material, documented instance(s) where ICANN has been unable to pursue its Mission because of its jurisdiction? If so, please provide documentation. Are you aware of and able to document the existence of an alternative jurisdiction where ICANN would not be so prevented from pursuing its Mission? If so, please provide documentation.
Such a questionnaire could of course lead to a full-scale legal due-diligence exercise for suggested alternatives as we recently did with respect to California in Work Stream One (because we would need a demonstration that any such alternative, while possibly solving one perceived problem, did not allow others). Current jurisdiction has worked well for nineteen years and we just finished reorganizing things at great expense to better fit within California with enforceable Empowered Community powers. Is WS2 to change that?
That is clearly not this group's mandate.
I think we have a different mission than that to accomplish by June. Our mission is essentially to look at settlement of dispute jurisdiction issues and right now that seems like plenty to try to get done by June.
Agreed.
That Q4 is still under consideration, after failing to gain a clear consensus and even getting substantially less support than question 5 (which basically asked if Q’s 1-3 should go out if Q4 was rejected), is puzzling. How can we release Q4 in these circumstances? This is too important to “wing it and let’s see what happens.” We don’t do survey questions for a living. Don’t we at least need to guarantee that our questions stay within ICANN’s mission and call for answers to do the same? Mathieu, as I recall, said in chat that respondents often go beyond the bounds of what is asked – that tendency itself seems enough to delete Question 4 at the very least. We should just look at the jurisdiction of contracts and dispute settlements, as paragraph 06 of the Final Report puts it.
A reasonable place to "restart" our work, I would suggest.
Finally, the questionnaire is sensitive enough that we will likely encounter the same debate when we run it by the full CCWG.
Most likely.
Matthew
David David McAuley International Policy Manager Verisign Inc. 703-948-4154 From: ws2-jurisdiction-bounces@icann.org [ mailto:ws2-jurisdiction-bounces@icann.org ] On Behalf Of Greg Shatan Sent: Saturday, January 07, 2017 1:23 PM To: ws2-jurisdiction Subject: [EXTERNAL] [Ws2-jurisdiction] Jurisdiction Questionnaire: RESPONSE REQUESTED All, We made some good progress on our call on Friday, January 6. Following a wide-ranging discussion, we were able to make some headway on refining the draft questionnaire. I encourage those who missed the call to review the recording and notes. Specifically, we came to a preliminary conclusion on revising the Preamble and Question 1, subject to comment on this list and a final discussion on our next call (Tuesday, January 10 at 13:00). Question 2 had no revisions suggested, and Question 3 had only one revision suggested. The Preamble and Questions 1, 2 and 3 (with the proposed revision in "track changes") are in the first document below (Word and PDF documents) and also in text below. Please review this version of the Preamble and Questions 1-3 and provide support (or lack of support) and/or comments for this portion. We also discussed several aspects of Question 4, including the purpose of the question; whether the question is different in nature from Questions 1-3; whether or not the question should be included in this questionnaire, a subsequent questionnaire or not at all; the types of responses desired (and the types expected); and the drafting of the question itself. With these topics and seven drafting alternatives (and the ability to pick and choose elements of those alternatives), this required more time than we had left on the call. Therefore, we did not come to any preliminary conclusions on Question 4. The drafting alternatives for Question 4 (including the current version) are in the second draft document (Word and PDF). Please look at the alternatives carefully, particularly if you have not supported sending question 4 in its current form. Please review the options for Question 4 and respond, indicating (a) Which version(s) of Question 4 you could support and which you would object to, and (b) If the answer to (a) is "none," how you would change or combine one or more alternatives in order to support it. We will conclude this discussion on our call of January 10, so please provide your thoughts and responses before then. Thank you. Greg VERSION OF PREAMBLE AND QUESTIONS 1-3 FOR REVIEW PREAMBLE The newly-adopted ICANN bylaws created several Work Stream 2 accountability subgroups. One of them, the subgroup on Jurisdiction, is posing the questions below for community input into the subgroup’s deliberations. As directed by Bylaw Article 27, Section 27.1(b)(vi) and to the extent set forth in the CCWG-Accountability Final Report , [1] the Jurisdiction subgroup is addressing jurisdiction*-related questions, including how choice of jurisdiction and applicable laws for dispute settlement impact ICANN's accountability and the actual operation of policies. To help the subgroup in these endeavors we are asking you to consider and respond to the following specific questions. In this regard, the subgroup is asking for concrete, factual submissions (positive, negative, or neutral) that will help ensure that the subgroup’s deliberations are informed, fact-based, and address real issues. The subgroup is interested in all types of jurisdiction-related factual experiences, not just those involving actual disputes/court cases. QUESTION 1 Has your business, your privacy or your ability to use or purchase domain name-related services been affected by ICANN's jurisdiction* in any way? If the answer is Yes, please describe specific cases, situations or incidents, including the date, the parties involved, and links to any relevant documents. Please note that “affected” may refer to positive and/or negative effects. QUESTION 2 Has ICANN's jurisdiction* affected any dispute resolution process or litigation related to domain names you have been involved in? If the answer is Yes, please describe specific cases, situations or incidents, including the date, the parties involved, and links to any relevant documents. Please note that “affected” may refer to positive and/or negative effects. QUESTION 3 Do you have copies of and/or links to any verifiable reports of experiences of other parties that would be responsive to the questions above? If the answer is yes, please provide these copies and/or links. Please provide either first-person accounts or reliable third-party accounts such as news reports; please do not provide your own version of events.
---------------------------------------------------------------------- [1] See CCWG-Accountability Main Report, paragraphs 6 and 234, and Annex 12, paragraphs 25-31. * For this Questionnaire, “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.
--
Matthew Shears Global Internet Policy and Human Rights Center for Democracy & Technology (CDT) + 44 771 2472987
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
Dear Co-Chairs/ All I understand that the Chairs will right now be busy drafting a report to submit for the CCWG meeting tomorrow indicating consensus on the questionnaire as seems to have been agreed in today's call. Since I made a formal objection to the process, I will like to clarify the basis of my objection, putting it on record. My objection mainly arises from the fact that that the jurisdiction sub-group seems to be deciding a new, innovative, and completely unjust, rule for its working. It apparently has decided that in taking public/ community input into its work, /*it will accept only such in*//*puts that are fully and exclusively based on actual *//*occurrences*//*/ instances *//*that can be proven to have happened in the past*/. I expect that, in the typical creeping acquisition way, this new rule would then also be applied to the discussions, and to making recommendations, by the group itself. This is a unique and significant epistemological stance. Importantly, such a stance was not applied to the work of work-stream I of CCWG, for coming up with a new accountability mechanism. It was never insisted that only such "facts" as arise from actual occurrences in the past can be the basis of suggesting any institutional change. Even in other groups of work-stream 2, like those dealing with transparency, human rights framework, etc, it is not a condition that any institutional change has to be based on facts arising from actual "verifiable occurrences" in the past, and the implications arising thereof. I have some passing acquaintance about the stage of outputs from the subgroups on transparency and human rights, and I know for a fact that /*there has never been a condition that any institutional innovation can only arise from "verifiable occurrences" in the past, absent which no change can be suggested or made*/. In the circumstance, it is question of fairness and natural justice, to ask why a jurisdiction related institutional change can only be based on facts that directly arise from clearly verifiable past occurrences. What is so special about jurisdiction related institutional changes - which is the mandate of a separate sub group, and about which issue many actors were insistent since the very start that it should be given full consideration? I am happy to shown otherwise, but right now I can only think that this is being done with the intention to fend off the discussion going in directions that certain actors fear would not serve their interests. If one fears losing a case on cannons of reason, justice and preponderance of public opinion, the best thing to do - if one is powerful enough - is to simply change the rules of how a decision process will be conducted, and what are the legitimate or illegitimate inputs into it. That is exactly what has been done in this case. It strains the credibility of ICANN's so called open process; whose first rule seems to be, throw so much resources at any important issue as to overwhelm any discussion about it, and then, if "problems" persist, simply change the rules and frame new ones, as has been done in this case. I cannot accept that an ICANN WG cannot trust the community/ public to give their free and unconstrained views on a key issue central to its mandate. And that it should resort to making novel, and absurd rules, about what can and what cannot be said by the public/ community as inputs into its work. This especially when in very similar parallel processes there exists no such rule. This new rule changes the very basis of the working of this sub group, and almost completely hamstrings it. parminder
I would also like it to be on record that the so called consensus was decided on basis of 11 to 3 votes, which were neatly divided along the lines of developed countries based persons and developing country based ones. All those who voted "yes" to the final formulation were from developed countries, overwhelmingly US based (which has current jurisdiction on ICANN), and all those from developing countries voted "no". There were only three participants from developing countries, and all voted "no". I must however state that many from developed countries did not vote either way. I am all for friendship and camaraderie, but there is a limit to playing down such significant facts and differences, especially in relation to such an important geopolitical issue as the jurisdictional oversight over ICANN. This particular fact of how voting was split cannot be ignored. parminder On Tuesday 10 January 2017 11:59 PM, parminder wrote:
Dear Co-Chairs/ All
I understand that the Chairs will right now be busy drafting a report to submit for the CCWG meeting tomorrow indicating consensus on the questionnaire as seems to have been agreed in today's call. Since I made a formal objection to the process, I will like to clarify the basis of my objection, putting it on record.
My objection mainly arises from the fact that that the jurisdiction sub-group seems to be deciding a new, innovative, and completely unjust, rule for its working. It apparently has decided that in taking public/ community input into its work, /*it will accept only such in*//*puts that are fully and exclusively based on actual *//*occurrences*//*/ instances *//*that can be proven to have happened in the past*/. I expect that, in the typical creeping acquisition way, this new rule would then also be applied to the discussions, and to making recommendations, by the group itself.
This is a unique and significant epistemological stance. Importantly, such a stance was not applied to the work of work-stream I of CCWG, for coming up with a new accountability mechanism. It was never insisted that only such "facts" as arise from actual occurrences in the past can be the basis of suggesting any institutional change.
Even in other groups of work-stream 2, like those dealing with transparency, human rights framework, etc, it is not a condition that any institutional change has to be based on facts arising from actual "verifiable occurrences" in the past, and the implications arising thereof. I have some passing acquaintance about the stage of outputs from the subgroups on transparency and human rights, and I know for a fact that /*there has never been a condition that any institutional innovation can only arise from "verifiable occurrences" in the past, absent which no change can be suggested or made*/.
In the circumstance, it is question of fairness and natural justice, to ask why a jurisdiction related institutional change can only be based on facts that directly arise from clearly verifiable past occurrences. What is so special about jurisdiction related institutional changes - which is the mandate of a separate sub group, and about which issue many actors were insistent since the very start that it should be given full consideration?
I am happy to shown otherwise, but right now I can only think that this is being done with the intention to fend off the discussion going in directions that certain actors fear would not serve their interests. If one fears losing a case on cannons of reason, justice and preponderance of public opinion, the best thing to do - if one is powerful enough - is to simply change the rules of how a decision process will be conducted, and what are the legitimate or illegitimate inputs into it. That is exactly what has been done in this case. It strains the credibility of ICANN's so called open process; whose first rule seems to be, throw so much resources at any important issue as to overwhelm any discussion about it, and then, if "problems" persist, simply change the rules and frame new ones, as has been done in this case. I cannot accept that an ICANN WG cannot trust the community/ public to give their free and unconstrained views on a key issue central to its mandate. And that it should resort to making novel, and absurd rules, about what can and what cannot be said by the public/ community as inputs into its work. This especially when in very similar parallel processes there exists no such rule. This new rule changes the very basis of the working of this sub group, and almost completely hamstrings it.
parminder
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1. It's not a rule. It's survey design. We could just as easily have written a question that asked about respondents hopes and fears. However, that, IMO, would be far less useful in an empirical sense and answer different questions. 2. Your expectation notwithstanding, there is nothing that requires only such inputs from being accepted in the future. Continued participation in the working group and calling this to our attention all but guarantees this will not be the case. 3. I don't fear the discussion of hypotheticals; I have them all the time. When it comes to making sound policy however, I want it to be based upon facts and not fears. Hence, my push for questions with an empirical basis. 4. I welcome discourse on the problems of jurisdiction. However, unsubstantiated conversation isn't a sound basis for public policy. 5. Yes. I'm empathetic not oblivious to the demographics of the consensus vote. Such demographics are unfortunately characteristic of many if not most Internet governance venues. My issue with the minority position was that I simply found its question formulation weaker as a matter of survey design. Best regards, John Laprise, Ph.D. Consulting Scholar <http://www.linkedin.com/in/jplaprise/> http://www.linkedin.com/in/jplaprise/ From: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of parminder Sent: Tuesday, January 10, 2017 12:52 PM To: ws2-jurisdiction@icann.org Subject: Re: [Ws2-jurisdiction] Epistemological basis of sub-group's working - and my objection to the so called consensus I would also like it to be on record that the so called consensus was decided on basis of 11 to 3 votes, which were neatly divided along the lines of developed countries based persons and developing country based ones. All those who voted "yes" to the final formulation were from developed countries, overwhelmingly US based (which has current jurisdiction on ICANN), and all those from developing countries voted "no". There were only three participants from developing countries, and all voted "no". I must however state that many from developed countries did not vote either way. I am all for friendship and camaraderie, but there is a limit to playing down such significant facts and differences, especially in relation to such an important geopolitical issue as the jurisdictional oversight over ICANN. This particular fact of how voting was split cannot be ignored. parminder On Tuesday 10 January 2017 11:59 PM, parminder wrote: Dear Co-Chairs/ All I understand that the Chairs will right now be busy drafting a report to submit for the CCWG meeting tomorrow indicating consensus on the questionnaire as seems to have been agreed in today's call. Since I made a formal objection to the process, I will like to clarify the basis of my objection, putting it on record. My objection mainly arises from the fact that that the jurisdiction sub-group seems to be deciding a new, innovative, and completely unjust, rule for its working. It apparently has decided that in taking public/ community input into its work, it will accept only such inputs that are fully and exclusively based on actual occurrences/ instances that can be proven to have happened in the past. I expect that, in the typical creeping acquisition way, this new rule would then also be applied to the discussions, and to making recommendations, by the group itself. This is a unique and significant epistemological stance. Importantly, such a stance was not applied to the work of work-stream I of CCWG, for coming up with a new accountability mechanism. It was never insisted that only such "facts" as arise from actual occurrences in the past can be the basis of suggesting any institutional change. Even in other groups of work-stream 2, like those dealing with transparency, human rights framework, etc, it is not a condition that any institutional change has to be based on facts arising from actual "verifiable occurrences" in the past, and the implications arising thereof. I have some passing acquaintance about the stage of outputs from the subgroups on transparency and human rights, and I know for a fact that there has never been a condition that any institutional innovation can only arise from "verifiable occurrences" in the past, absent which no change can be suggested or made. In the circumstance, it is question of fairness and natural justice, to ask why a jurisdiction related institutional change can only be based on facts that directly arise from clearly verifiable past occurrences. What is so special about jurisdiction related institutional changes - which is the mandate of a separate sub group, and about which issue many actors were insistent since the very start that it should be given full consideration? I am happy to shown otherwise, but right now I can only think that this is being done with the intention to fend off the discussion going in directions that certain actors fear would not serve their interests. If one fears losing a case on cannons of reason, justice and preponderance of public opinion, the best thing to do - if one is powerful enough - is to simply change the rules of how a decision process will be conducted, and what are the legitimate or illegitimate inputs into it. That is exactly what has been done in this case. It strains the credibility of ICANN's so called open process; whose first rule seems to be, throw so much resources at any important issue as to overwhelm any discussion about it, and then, if "problems" persist, simply change the rules and frame new ones, as has been done in this case. I cannot accept that an ICANN WG cannot trust the community/ public to give their free and unconstrained views on a key issue central to its mandate. And that it should resort to making novel, and absurd rules, about what can and what cannot be said by the public/ community as inputs into its work. This especially when in very similar parallel processes there exists no such rule. This new rule changes the very basis of the working of this sub group, and almost completely hamstrings it. parminder _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
Actually you are misrepresenting the situation, Parminder. At least two of the "no" votes to which you refer were not votes against proceeding with the version of Q4 we ended up adopting, they were expressing preferences for small alterations in wording. From: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of parminder Sent: Tuesday, January 10, 2017 1:52 PM To: ws2-jurisdiction@icann.org Subject: Re: [Ws2-jurisdiction] Epistemological basis of sub-group's working - and my objection to the so called consensus I would also like it to be on record that the so called consensus was decided on basis of 11 to 3 votes, which were neatly divided along the lines of developed countries based persons and developing country based ones. All those who voted "yes" to the final formulation were from developed countries, overwhelmingly US based (which has current jurisdiction on ICANN), and all those from developing countries voted "no". There were only three participants from developing countries, and all voted "no". I must however state that many from developed countries did not vote either way. I am all for friendship and camaraderie, but there is a limit to playing down such significant facts and differences, especially in relation to such an important geopolitical issue as the jurisdictional oversight over ICANN. This particular fact of how voting was split cannot be ignored. parminder On Tuesday 10 January 2017 11:59 PM, parminder wrote: Dear Co-Chairs/ All I understand that the Chairs will right now be busy drafting a report to submit for the CCWG meeting tomorrow indicating consensus on the questionnaire as seems to have been agreed in today's call. Since I made a formal objection to the process, I will like to clarify the basis of my objection, putting it on record. My objection mainly arises from the fact that that the jurisdiction sub-group seems to be deciding a new, innovative, and completely unjust, rule for its working. It apparently has decided that in taking public/ community input into its work, it will accept only such inputs that are fully and exclusively based on actual occurrences/ instances that can be proven to have happened in the past. I expect that, in the typical creeping acquisition way, this new rule would then also be applied to the discussions, and to making recommendations, by the group itself. This is a unique and significant epistemological stance. Importantly, such a stance was not applied to the work of work-stream I of CCWG, for coming up with a new accountability mechanism. It was never insisted that only such "facts" as arise from actual occurrences in the past can be the basis of suggesting any institutional change. Even in other groups of work-stream 2, like those dealing with transparency, human rights framework, etc, it is not a condition that any institutional change has to be based on facts arising from actual "verifiable occurrences" in the past, and the implications arising thereof. I have some passing acquaintance about the stage of outputs from the subgroups on transparency and human rights, and I know for a fact that there has never been a condition that any institutional innovation can only arise from "verifiable occurrences" in the past, absent which no change can be suggested or made. In the circumstance, it is question of fairness and natural justice, to ask why a jurisdiction related institutional change can only be based on facts that directly arise from clearly verifiable past occurrences. What is so special about jurisdiction related institutional changes - which is the mandate of a separate sub group, and about which issue many actors were insistent since the very start that it should be given full consideration? I am happy to shown otherwise, but right now I can only think that this is being done with the intention to fend off the discussion going in directions that certain actors fear would not serve their interests. If one fears losing a case on cannons of reason, justice and preponderance of public opinion, the best thing to do - if one is powerful enough - is to simply change the rules of how a decision process will be conducted, and what are the legitimate or illegitimate inputs into it. That is exactly what has been done in this case. It strains the credibility of ICANN's so called open process; whose first rule seems to be, throw so much resources at any important issue as to overwhelm any discussion about it, and then, if "problems" persist, simply change the rules and frame new ones, as has been done in this case. I cannot accept that an ICANN WG cannot trust the community/ public to give their free and unconstrained views on a key issue central to its mandate. And that it should resort to making novel, and absurd rules, about what can and what cannot be said by the public/ community as inputs into its work. This especially when in very similar parallel processes there exists no such rule. This new rule changes the very basis of the working of this sub group, and almost completely hamstrings it. parminder _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
As long as this is "for the record," I'd like the record to be correct. Parminder is referring to the initial poll where we were gauging support for 3 different alternatives (and ultimately a fourth), not to the final consensus call. (I believe the results were actually 13-3...) Notably, all the other alternatives had more (or much more) non-support than they did support. The actual consensus call on the final formulation had only a single objection. Greg On Tue, Jan 10, 2017 at 6:18 PM, Mueller, Milton L <milton@gatech.edu> wrote:
Actually you are misrepresenting the situation, Parminder.
At least two of the “no” votes to which you refer were not votes against proceeding with the version of Q4 we ended up adopting, they were expressing preferences for small alterations in wording.
*From:* ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction- bounces@icann.org] *On Behalf Of *parminder *Sent:* Tuesday, January 10, 2017 1:52 PM *To:* ws2-jurisdiction@icann.org *Subject:* Re: [Ws2-jurisdiction] Epistemological basis of sub-group's working - and my objection to the so called consensus
I would also like it to be on record that the so called consensus was decided on basis of 11 to 3 votes, which were neatly divided along the lines of developed countries based persons and developing country based ones. All those who voted "yes" to the final formulation were from developed countries, overwhelmingly US based (which has current jurisdiction on ICANN), and all those from developing countries voted "no". There were only three participants from developing countries, and all voted "no". I must however state that many from developed countries did not vote either way.
I am all for friendship and camaraderie, but there is a limit to playing down such significant facts and differences, especially in relation to such an important geopolitical issue as the jurisdictional oversight over ICANN. This particular fact of how voting was split cannot be ignored.
parminder
On Tuesday 10 January 2017 11:59 PM, parminder wrote:
Dear Co-Chairs/ All
I understand that the Chairs will right now be busy drafting a report to submit for the CCWG meeting tomorrow indicating consensus on the questionnaire as seems to have been agreed in today's call. Since I made a formal objection to the process, I will like to clarify the basis of my objection, putting it on record.
My objection mainly arises from the fact that that the jurisdiction sub-group seems to be deciding a new, innovative, and completely unjust, rule for its working. It apparently has decided that in taking public/ community input into its work, *it will accept only such inputs that are fully and exclusively based on actual occurrences/ instances **that can be proven to have happened in the past*. I expect that, in the typical creeping acquisition way, this new rule would then also be applied to the discussions, and to making recommendations, by the group itself.
This is a unique and significant epistemological stance. Importantly, such a stance was not applied to the work of work-stream I of CCWG, for coming up with a new accountability mechanism. It was never insisted that only such "facts" as arise from actual occurrences in the past can be the basis of suggesting any institutional change.
Even in other groups of work-stream 2, like those dealing with transparency, human rights framework, etc, it is not a condition that any institutional change has to be based on facts arising from actual "verifiable occurrences" in the past, and the implications arising thereof. I have some passing acquaintance about the stage of outputs from the subgroups on transparency and human rights, and I know for a fact that *there has never been a condition that any institutional innovation can only arise from "verifiable occurrences" in the past, absent which no change can be suggested or made*.
In the circumstance, it is question of fairness and natural justice, to ask why a jurisdiction related institutional change can only be based on facts that directly arise from clearly verifiable past occurrences. What is so special about jurisdiction related institutional changes - which is the mandate of a separate sub group, and about which issue many actors were insistent since the very start that it should be given full consideration?
I am happy to shown otherwise, but right now I can only think that this is being done with the intention to fend off the discussion going in directions that certain actors fear would not serve their interests. If one fears losing a case on cannons of reason, justice and preponderance of public opinion, the best thing to do - if one is powerful enough - is to simply change the rules of how a decision process will be conducted, and what are the legitimate or illegitimate inputs into it. That is exactly what has been done in this case. It strains the credibility of ICANN's so called open process; whose first rule seems to be, throw so much resources at any important issue as to overwhelm any discussion about it, and then, if "problems" persist, simply change the rules and frame new ones, as has been done in this case. I cannot accept that an ICANN WG cannot trust the community/ public to give their free and unconstrained views on a key issue central to its mandate. And that it should resort to making novel, and absurd rules, about what can and what cannot be said by the public/ community as inputs into its work. This especially when in very similar parallel processes there exists no such rule. This new rule changes the very basis of the working of this sub group, and almost completely hamstrings it.
parminder
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On Wednesday 11 January 2017 04:54 AM, Greg Shatan wrote:
As long as this is "for the record," I'd like the record to be correct.
Parminder is referring to the initial poll where we were gauging support for 3 different alternatives (and ultimately a fourth), not to the final consensus call. (I believe the results were actually 13-3...) Notably, all the other alternatives had more (or much more) non-support than they did support.
Greg, I distinctly remember it as 11-3, but youd know better.
The actual consensus call on the final formulation had only a single objection.
No, that "just one vote against" was not on the substantive matter of the questionnaire text, where indeed was 11-3, it was on the question if anyone objected to the process of consensus being called, which is clearly a very different matter. I hope it is not presented that the questionnaire was carried by 11-1 or 13-1 vote. Thanks, parminder
Greg
On Tue, Jan 10, 2017 at 6:18 PM, Mueller, Milton L <milton@gatech.edu <mailto:milton@gatech.edu>> wrote:
Actually you are misrepresenting the situation, Parminder.
At least two of the “no” votes to which you refer were not votes against proceeding with the version of Q4 we ended up adopting, they were expressing preferences for small alterations in wording.
*From:*ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org>] *On Behalf Of *parminder *Sent:* Tuesday, January 10, 2017 1:52 PM *To:* ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> *Subject:* Re: [Ws2-jurisdiction] Epistemological basis of sub-group's working - and my objection to the so called consensus
I would also like it to be on record that the so called consensus was decided on basis of 11 to 3 votes, which were neatly divided along the lines of developed countries based persons and developing country based ones. All those who voted "yes" to the final formulation were from developed countries, overwhelmingly US based (which has current jurisdiction on ICANN), and all those from developing countries voted "no". There were only three participants from developing countries, and all voted "no". I must however state that many from developed countries did not vote either way.
I am all for friendship and camaraderie, but there is a limit to playing down such significant facts and differences, especially in relation to such an important geopolitical issue as the jurisdictional oversight over ICANN. This particular fact of how voting was split cannot be ignored.
parminder
On Tuesday 10 January 2017 11:59 PM, parminder wrote:
Dear Co-Chairs/ All
I understand that the Chairs will right now be busy drafting a report to submit for the CCWG meeting tomorrow indicating consensus on the questionnaire as seems to have been agreed in today's call. Since I made a formal objection to the process, I will like to clarify the basis of my objection, putting it on record.
My objection mainly arises from the fact that that the jurisdiction sub-group seems to be deciding a new, innovative, and completely unjust, rule for its working. It apparently has decided that in taking public/ community input into its work, */it will accept only such inputs that are fully and exclusively based on actual occurrences/ instances /**/that can be proven to have happened in the past/*. I expect that, in the typical creeping acquisition way, this new rule would then also be applied to the discussions, and to making recommendations, by the group itself.
This is a unique and significant epistemological stance. Importantly, such a stance was not applied to the work of work-stream I of CCWG, for coming up with a new accountability mechanism. It was never insisted that only such "facts" as arise from actual occurrences in the past can be the basis of suggesting any institutional change.
Even in other groups of work-stream 2, like those dealing with transparency, human rights framework, etc, it is not a condition that any institutional change has to be based on facts arising from actual "verifiable occurrences" in the past, and the implications arising thereof. I have some passing acquaintance about the stage of outputs from the subgroups on transparency and human rights, and I know for a fact that */there has never been a condition that any institutional innovation can only arise from "verifiable occurrences" in the past, absent which no change can be suggested or made/*.
In the circumstance, it is question of fairness and natural justice, to ask why a jurisdiction related institutional change can only be based on facts that directly arise from clearly verifiable past occurrences. What is so special about jurisdiction related institutional changes - which is the mandate of a separate sub group, and about which issue many actors were insistent since the very start that it should be given full consideration?
I am happy to shown otherwise, but right now I can only think that this is being done with the intention to fend off the discussion going in directions that certain actors fear would not serve their interests. If one fears losing a case on cannons of reason, justice and preponderance of public opinion, the best thing to do - if one is powerful enough - is to simply change the rules of how a decision process will be conducted, and what are the legitimate or illegitimate inputs into it. That is exactly what has been done in this case. It strains the credibility of ICANN's so called open process; whose first rule seems to be, throw so much resources at any important issue as to overwhelm any discussion about it, and then, if "problems" persist, simply change the rules and frame new ones, as has been done in this case. I cannot accept that an ICANN WG cannot trust the community/ public to give their free and unconstrained views on a key issue central to its mandate. And that it should resort to making novel, and absurd rules, about what can and what cannot be said by the public/ community as inputs into its work. This especially when in very similar parallel processes there exists no such rule. This new rule changes the very basis of the working of this sub group, and almost completely hamstrings it.
parminder
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On Wednesday 11 January 2017 04:48 AM, Mueller, Milton L wrote:
Actually you are misrepresenting the situation, Parminder.
At least two of the “no” votes to which you refer were not votes against proceeding with the version of Q4 we ended up adopting, they were expressing preferences for small alterations in wording.
You are wrong, or rather misrepresenting things, Milton. Not just two "no" votes were expressing preference for what you call as small alterations in wording,*i**n fact, */*all three "no" votes (including mine) were calling for just that small alteration. * /Which brings us to the key question: why did the chair rush calling consensus on one text, rather than, as is his job, to try to persuade acceptance of small changes that could make all happy? I was quite happy with Seun's alternation to David's text, and voted for it. But suddenly, majoratarianism, rather than a spirit of compromise, took control, and a consensus was triumphantly called, and then celebrated. Is is not the Chair's job to see if we could arrive at a text that all agreed, when, as you say, the nay sayers only wanted small alterations of wording. This, especially in a context that the wording of the question was a hotly contested subject for more than a month here. And the chair could notice the developed - developing country divide in the voting. Was it then proper for the Chair to bludgeon the group into a quick "consensus" rather than - at this last stages where the positions had come rather close, and we were ready to work on David's text (which itself was unfairly forced on us, in preference to earlier texts, and subsequent amendments to David's) -- seek compromises and a text that everyone agreed. Also please notice that Seun and I proposed amendments to David's text well in advance over the elist. These were not put on the screen. I kept insisting that we start with the 7 alternatives of the last call, and also put Seun/ my alteration on the screen. I repeatedly got no response from the chair. I then cut pasted the text thrice in the chat window - still no response. Vidushi make strong appeals thrice to put these texts on the screen, but to no avail. I had to practically call a point of order to get the chair to then, very belatedly, put that text on the screen. But no attempt was made - which is a chair's job to do - to see if compromise could be got. We had much come down from our position to begin with last call's 7 options - or in fact were forced to come down - and were ready to work on David's text, suggesting small changes. But the chair, and following him the group, made no effort to try compromises. I think this was a miscarriage of an open participatory process. parminder
*From:*ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] *On Behalf Of *parminder *Sent:* Tuesday, January 10, 2017 1:52 PM *To:* ws2-jurisdiction@icann.org *Subject:* Re: [Ws2-jurisdiction] Epistemological basis of sub-group's working - and my objection to the so called consensus
I would also like it to be on record that the so called consensus was decided on basis of 11 to 3 votes, which were neatly divided along the lines of developed countries based persons and developing country based ones. All those who voted "yes" to the final formulation were from developed countries, overwhelmingly US based (which has current jurisdiction on ICANN), and all those from developing countries voted "no". There were only three participants from developing countries, and all voted "no". I must however state that many from developed countries did not vote either way.
I am all for friendship and camaraderie, but there is a limit to playing down such significant facts and differences, especially in relation to such an important geopolitical issue as the jurisdictional oversight over ICANN. This particular fact of how voting was split cannot be ignored.
parminder
On Tuesday 10 January 2017 11:59 PM, parminder wrote:
Dear Co-Chairs/ All
I understand that the Chairs will right now be busy drafting a report to submit for the CCWG meeting tomorrow indicating consensus on the questionnaire as seems to have been agreed in today's call. Since I made a formal objection to the process, I will like to clarify the basis of my objection, putting it on record.
My objection mainly arises from the fact that that the jurisdiction sub-group seems to be deciding a new, innovative, and completely unjust, rule for its working. It apparently has decided that in taking public/ community input into its work, */it will accept only such inputs that are fully and exclusively based on actual occurrences/ instances /**/that can be proven to have happened in the past/*. I expect that, in the typical creeping acquisition way, this new rule would then also be applied to the discussions, and to making recommendations, by the group itself.
This is a unique and significant epistemological stance. Importantly, such a stance was not applied to the work of work-stream I of CCWG, for coming up with a new accountability mechanism. It was never insisted that only such "facts" as arise from actual occurrences in the past can be the basis of suggesting any institutional change.
Even in other groups of work-stream 2, like those dealing with transparency, human rights framework, etc, it is not a condition that any institutional change has to be based on facts arising from actual "verifiable occurrences" in the past, and the implications arising thereof. I have some passing acquaintance about the stage of outputs from the subgroups on transparency and human rights, and I know for a fact that */there has never been a condition that any institutional innovation can only arise from "verifiable occurrences" in the past, absent which no change can be suggested or made/*.
In the circumstance, it is question of fairness and natural justice, to ask why a jurisdiction related institutional change can only be based on facts that directly arise from clearly verifiable past occurrences. What is so special about jurisdiction related institutional changes - which is the mandate of a separate sub group, and about which issue many actors were insistent since the very start that it should be given full consideration?
I am happy to shown otherwise, but right now I can only think that this is being done with the intention to fend off the discussion going in directions that certain actors fear would not serve their interests. If one fears losing a case on cannons of reason, justice and preponderance of public opinion, the best thing to do - if one is powerful enough - is to simply change the rules of how a decision process will be conducted, and what are the legitimate or illegitimate inputs into it. That is exactly what has been done in this case. It strains the credibility of ICANN's so called open process; whose first rule seems to be, throw so much resources at any important issue as to overwhelm any discussion about it, and then, if "problems" persist, simply change the rules and frame new ones, as has been done in this case. I cannot accept that an ICANN WG cannot trust the community/ public to give their free and unconstrained views on a key issue central to its mandate. And that it should resort to making novel, and absurd rules, about what can and what cannot be said by the public/ community as inputs into its work. This especially when in very similar parallel processes there exists no such rule. This new rule changes the very basis of the working of this sub group, and almost completely hamstrings it.
parminder
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Paraminder: You ask "why did the chair rush calling consensus on one text, rather than, as is his job, to try to persuade acceptance of small changes that could make all happy", but then you note that "the wording of the question was a hotly contested subject for more than a month". I believe that you have answered your own question. Taking more than a month to concur on a questionnaire consisting of but four questions is an inordinate waste of valuable time, and bringing the matter to a conclusion after so much time is hardly a matter of running roughshod over any member of the WG but a reasonable decision to conclude the discussion when it became apparent that consensus had been reached both on the wording of the question and the need to move on to other matters. I commend the chair for bringing the discussion to a successful conclusion. We flatter ourselves too much if we believe that the precise wording of any question will constrain anyone responding to it from putting forth whatever point of view they wish to convey in an answer regardless of that wording. The precision required for the wording of a questionnaire is of a lesser degree than that required for final recommendations. Finally, it is not the job of the chair to "make all happy". Indeed, I have yet to participate in any policy process anywhere that makes all participants equally happy. Further, the general rule of thumb regarding a policy process is that the final product is probably fair if participants in its shaping are equally unhappy about what they had to concede to reach consensus agreement. It is the job of the chair to move us toward consensus, not unanimity of happiness, and to fulfill our charge within the allotted timespan. Regards, Philip 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 Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey From: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of parminder Sent: Tuesday, January 10, 2017 11:31 PM To: Mueller, Milton L; ws2-jurisdiction@icann.org Subject: Re: [Ws2-jurisdiction] Epistemological basis of sub-group's working - and my objection to the so called consensus On Wednesday 11 January 2017 04:48 AM, Mueller, Milton L wrote: Actually you are misrepresenting the situation, Parminder. At least two of the "no" votes to which you refer were not votes against proceeding with the version of Q4 we ended up adopting, they were expressing preferences for small alterations in wording. You are wrong, or rather misrepresenting things, Milton. Not just two "no" votes were expressing preference for what you call as small alterations in wording, in fact, all three "no" votes (including mine) were calling for just that small alteration. Which brings us to the key question: why did the chair rush calling consensus on one text, rather than, as is his job, to try to persuade acceptance of small changes that could make all happy? I was quite happy with Seun's alternation to David's text, and voted for it. But suddenly, majoratarianism, rather than a spirit of compromise, took control, and a consensus was triumphantly called, and then celebrated. Is is not the Chair's job to see if we could arrive at a text that all agreed, when, as you say, the nay sayers only wanted small alterations of wording. This, especially in a context that the wording of the question was a hotly contested subject for more than a month here. And the chair could notice the developed - developing country divide in the voting. Was it then proper for the Chair to bludgeon the group into a quick "consensus" rather than - at this last stages where the positions had come rather close, and we were ready to work on David's text (which itself was unfairly forced on us, in preference to earlier texts, and subsequent amendments to David's) -- seek compromises and a text that everyone agreed. Also please notice that Seun and I proposed amendments to David's text well in advance over the elist. These were not put on the screen. I kept insisting that we start with the 7 alternatives of the last call, and also put Seun/ my alteration on the screen. I repeatedly got no response from the chair. I then cut pasted the text thrice in the chat window - still no response. Vidushi make strong appeals thrice to put these texts on the screen, but to no avail. I had to practically call a point of order to get the chair to then, very belatedly, put that text on the screen. But no attempt was made - which is a chair's job to do - to see if compromise could be got. We had much come down from our position to begin with last call's 7 options - or in fact were forced to come down - and were ready to work on David's text, suggesting small changes. But the chair, and following him the group, made no effort to try compromises. I think this was a miscarriage of an open participatory process. parminder From: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of parminder Sent: Tuesday, January 10, 2017 1:52 PM To: ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org> Subject: Re: [Ws2-jurisdiction] Epistemological basis of sub-group's working - and my objection to the so called consensus I would also like it to be on record that the so called consensus was decided on basis of 11 to 3 votes, which were neatly divided along the lines of developed countries based persons and developing country based ones. All those who voted "yes" to the final formulation were from developed countries, overwhelmingly US based (which has current jurisdiction on ICANN), and all those from developing countries voted "no". There were only three participants from developing countries, and all voted "no". I must however state that many from developed countries did not vote either way. I am all for friendship and camaraderie, but there is a limit to playing down such significant facts and differences, especially in relation to such an important geopolitical issue as the jurisdictional oversight over ICANN. This particular fact of how voting was split cannot be ignored. parminder On Tuesday 10 January 2017 11:59 PM, parminder wrote: Dear Co-Chairs/ All I understand that the Chairs will right now be busy drafting a report to submit for the CCWG meeting tomorrow indicating consensus on the questionnaire as seems to have been agreed in today's call. Since I made a formal objection to the process, I will like to clarify the basis of my objection, putting it on record. My objection mainly arises from the fact that that the jurisdiction sub-group seems to be deciding a new, innovative, and completely unjust, rule for its working. It apparently has decided that in taking public/ community input into its work, it will accept only such inputs that are fully and exclusively based on actual occurrences/ instances that can be proven to have happened in the past. I expect that, in the typical creeping acquisition way, this new rule would then also be applied to the discussions, and to making recommendations, by the group itself. This is a unique and significant epistemological stance. Importantly, such a stance was not applied to the work of work-stream I of CCWG, for coming up with a new accountability mechanism. It was never insisted that only such "facts" as arise from actual occurrences in the past can be the basis of suggesting any institutional change. Even in other groups of work-stream 2, like those dealing with transparency, human rights framework, etc, it is not a condition that any institutional change has to be based on facts arising from actual "verifiable occurrences" in the past, and the implications arising thereof. I have some passing acquaintance about the stage of outputs from the subgroups on transparency and human rights, and I know for a fact that there has never been a condition that any institutional innovation can only arise from "verifiable occurrences" in the past, absent which no change can be suggested or made. In the circumstance, it is question of fairness and natural justice, to ask why a jurisdiction related institutional change can only be based on facts that directly arise from clearly verifiable past occurrences. What is so special about jurisdiction related institutional changes - which is the mandate of a separate sub group, and about which issue many actors were insistent since the very start that it should be given full consideration? I am happy to shown otherwise, but right now I can only think that this is being done with the intention to fend off the discussion going in directions that certain actors fear would not serve their interests. If one fears losing a case on cannons of reason, justice and preponderance of public opinion, the best thing to do - if one is powerful enough - is to simply change the rules of how a decision process will be conducted, and what are the legitimate or illegitimate inputs into it. That is exactly what has been done in this case. It strains the credibility of ICANN's so called open process; whose first rule seems to be, throw so much resources at any important issue as to overwhelm any discussion about it, and then, if "problems" persist, simply change the rules and frame new ones, as has been done in this case. I cannot accept that an ICANN WG cannot trust the community/ public to give their free and unconstrained views on a key issue central to its mandate. And that it should resort to making novel, and absurd rules, about what can and what cannot be said by the public/ community as inputs into its work. This especially when in very similar parallel processes there exists no such rule. This new rule changes the very basis of the working of this sub group, and almost completely hamstrings it. parminder _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction ________________________________ No virus found in this message. Checked by AVG - www.avg.com<http://www.avg.com/email-signature> Version: 2016.0.7996 / Virus Database: 4749/13706 - Release Date: 01/04/17
I've been watching this discussion for a long time, and have hesitated to intervene. However, I now think that it would be useful for certain members of the discussion, perhaps all members of the discussion, to read RFC 7282 by Pete Resnick regarding what various flavors of the word 'consensus' might mean. I know it's an IETF document, and it doesn't specifically pertain to ICANN of CCWG processes, but it has good and thoughtful intellectual content that might benefit the current discussion as well as others.. George Sadowsky
On Jan 11, 2017, at 10:27 AM, Phil Corwin <psc@vlaw-dc.com> wrote:
Paraminder:
You ask “why did the chair rush calling consensus on one text, rather than, as is his job, to try to persuade acceptance of small changes that could make all happy”, but then you note that “the wording of the question was a hotly contested subject for more than a month”.
I believe that you have answered your own question. Taking more than a month to concur on a questionnaire consisting of but four questions is an inordinate waste of valuable time, and bringing the matter to a conclusion after so much time is hardly a matter of running roughshod over any member of the WG but a reasonable decision to conclude the discussion when it became apparent that consensus had been reached both on the wording of the question and the need to move on to other matters. I commend the chair for bringing the discussion to a successful conclusion.
We flatter ourselves too much if we believe that the precise wording of any question will constrain anyone responding to it from putting forth whatever point of view they wish to convey in an answer regardless of that wording. The precision required for the wording of a questionnaire is of a lesser degree than that required for final recommendations.
Finally, it is not the job of the chair to “make all happy”. Indeed, I have yet to participate in any policy process anywhere that makes all participants equally happy. Further, the general rule of thumb regarding a policy process is that the final product is probably fair if participants in its shaping are equally unhappy about what they had to concede to reach consensus agreement. It is the job of the chair to move us toward consensus, not unanimity of happiness, and to fulfill our charge within the allotted timespan.
Regards, Philip
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
Twitter: @VlawDC
"Luck is the residue of design" -- Branch Rickey
From: ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org>] On Behalf Of parminder Sent: Tuesday, January 10, 2017 11:31 PM To: Mueller, Milton L; ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> Subject: Re: [Ws2-jurisdiction] Epistemological basis of sub-group's working - and my objection to the so called consensus
On Wednesday 11 January 2017 04:48 AM, Mueller, Milton L wrote: Actually you are misrepresenting the situation, Parminder.
At least two of the “no” votes to which you refer were not votes against proceeding with the version of Q4 we ended up adopting, they were expressing preferences for small alterations in wording.
You are wrong, or rather misrepresenting things, Milton. Not just two "no" votes were expressing preference for what you call as small alterations in wording, in fact, all three "no" votes (including mine) were calling for just that small alteration.
Which brings us to the key question: why did the chair rush calling consensus on one text, rather than, as is his job, to try to persuade acceptance of small changes that could make all happy? I was quite happy with Seun's alternation to David's text, and voted for it. But suddenly, majoratarianism, rather than a spirit of compromise, took control, and a consensus was triumphantly called, and then celebrated. Is is not the Chair's job to see if we could arrive at a text that all agreed, when, as you say, the nay sayers only wanted small alterations of wording.
This, especially in a context that the wording of the question was a hotly contested subject for more than a month here. And the chair could notice the developed - developing country divide in the voting. Was it then proper for the Chair to bludgeon the group into a quick "consensus" rather than - at this last stages where the positions had come rather close, and we were ready to work on David's text (which itself was unfairly forced on us, in preference to earlier texts, and subsequent amendments to David's) -- seek compromises and a text that everyone agreed.
Also please notice that Seun and I proposed amendments to David's text well in advance over the elist. These were not put on the screen. I kept insisting that we start with the 7 alternatives of the last call, and also put Seun/ my alteration on the screen. I repeatedly got no response from the chair. I then cut pasted the text thrice in the chat window - still no response. Vidushi make strong appeals thrice to put these texts on the screen, but to no avail. I had to practically call a point of order to get the chair to then, very belatedly, put that text on the screen. But no attempt was made - which is a chair's job to do - to see if compromise could be got. We had much come down from our position to begin with last call's 7 options - or in fact were forced to come down - and were ready to work on David's text, suggesting small changes. But the chair, and following him the group, made no effort to try compromises.
I think this was a miscarriage of an open participatory process.
parminder
From: ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org>] On Behalf Of parminder Sent: Tuesday, January 10, 2017 1:52 PM To: ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> Subject: Re: [Ws2-jurisdiction] Epistemological basis of sub-group's working - and my objection to the so called consensus
I would also like it to be on record that the so called consensus was decided on basis of 11 to 3 votes, which were neatly divided along the lines of developed countries based persons and developing country based ones. All those who voted "yes" to the final formulation were from developed countries, overwhelmingly US based (which has current jurisdiction on ICANN), and all those from developing countries voted "no". There were only three participants from developing countries, and all voted "no". I must however state that many from developed countries did not vote either way.
I am all for friendship and camaraderie, but there is a limit to playing down such significant facts and differences, especially in relation to such an important geopolitical issue as the jurisdictional oversight over ICANN. This particular fact of how voting was split cannot be ignored.
parminder
On Tuesday 10 January 2017 11:59 PM, parminder wrote: Dear Co-Chairs/ All
I understand that the Chairs will right now be busy drafting a report to submit for the CCWG meeting tomorrow indicating consensus on the questionnaire as seems to have been agreed in today's call. Since I made a formal objection to the process, I will like to clarify the basis of my objection, putting it on record.
My objection mainly arises from the fact that that the jurisdiction sub-group seems to be deciding a new, innovative, and completely unjust, rule for its working. It apparently has decided that in taking public/ community input into its work, it will accept only such inputs that are fully and exclusively based on actual occurrences/ instances that can be proven to have happened in the past. I expect that, in the typical creeping acquisition way, this new rule would then also be applied to the discussions, and to making recommendations, by the group itself.
This is a unique and significant epistemological stance. Importantly, such a stance was not applied to the work of work-stream I of CCWG, for coming up with a new accountability mechanism. It was never insisted that only such "facts" as arise from actual occurrences in the past can be the basis of suggesting any institutional change.
Even in other groups of work-stream 2, like those dealing with transparency, human rights framework, etc, it is not a condition that any institutional change has to be based on facts arising from actual "verifiable occurrences" in the past, and the implications arising thereof. I have some passing acquaintance about the stage of outputs from the subgroups on transparency and human rights, and I know for a fact that there has never been a condition that any institutional innovation can only arise from "verifiable occurrences" in the past, absent which no change can be suggested or made.
In the circumstance, it is question of fairness and natural justice, to ask why a jurisdiction related institutional change can only be based on facts that directly arise from clearly verifiable past occurrences. What is so special about jurisdiction related institutional changes - which is the mandate of a separate sub group, and about which issue many actors were insistent since the very start that it should be given full consideration?
I am happy to shown otherwise, but right now I can only think that this is being done with the intention to fend off the discussion going in directions that certain actors fear would not serve their interests. If one fears losing a case on cannons of reason, justice and preponderance of public opinion, the best thing to do - if one is powerful enough - is to simply change the rules of how a decision process will be conducted, and what are the legitimate or illegitimate inputs into it. That is exactly what has been done in this case. It strains the credibility of ICANN's so called open process; whose first rule seems to be, throw so much resources at any important issue as to overwhelm any discussion about it, and then, if "problems" persist, simply change the rules and frame new ones, as has been done in this case. I cannot accept that an ICANN WG cannot trust the community/ public to give their free and unconstrained views on a key issue central to its mandate. And that it should resort to making novel, and absurd rules, about what can and what cannot be said by the public/ community as inputs into its work. This especially when in very similar parallel processes there exists no such rule. This new rule changes the very basis of the working of this sub group, and almost completely hamstrings it.
parminder
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Sent from my LG G4 Kindly excuse brevity and typos On 11 Jan 2017 4:27 p.m., "Phil Corwin" <psc@vlaw-dc.com> wrote: We flatter ourselves too much if we believe that the precise wording of any question will constrain anyone responding to it from putting forth whatever point of view they wish to convey in an answer regardless of that wording. The precision required for the wording of a questionnaire is of a lesser degree than that required for final recommendations. SO: With respect, I will say you probably didn't put the above to practice then since you opposed a "minor" edit that asked for factually possible problems; If you indeed recognise that the responses received will merely be the beginning of a long process to final recommendation then you(we) should not have reacted to mere questions the way you(we) did - The questions could have been as flexible and clear as much as possible so long as it's requesting for facts. - we have an opportunity to produce some encompassing outcome on jurisdiction matter but we already blew it on fears that I have no idea where it's coming from. It would have made sense if we spent the energy in opposing responses that goes the direction of change in jurisdiction than spending it on not even granting a listening ears in the first place by rejecting certain questionnaire construct. Finally, it is not the job of the chair to “make all happy”. Indeed, I have yet to participate in any policy process anywhere that makes all participants equally happy. Further, the general rule of thumb regarding a policy process is that the final product is probably fair if participants in its shaping are equally unhappy about what they had to concede to reach consensus agreement. SO: I wonder how you will do the analysis to conclude that all sides are equally unhappy in this particular event(are you unhappy? If yes why?). I also wonder what outcome of question 4 indicates that views were applied in a balanced way. (Ah okay, for instance I got the 4a, 4b numbering suggestion accepted :-) ). It is the job of the chair to move us toward consensus, not unanimity of happiness, and to fulfill our charge within the allotted timespan. SO: It's the job of the chair to first observe the discussions (which incudes listening to everyone "both on the list and on call", considering/addressing issues raised, considering participation diversity et all) and then check consensus. Even though i may have a different "ultimate" goal from the 3 that voted against, I definitely would have made a number 4 if I were on the call because I did not observe a healthy discussion on this topic. - to gang-up against just a question in the manner observed isn't IMO an healthy one for MS improvement. Overall we need to face the reality of lack of balance (which is unavoidable) but we need to ensure its negative impact is reduced as much as possible. I will again pray wisdom for the Co-Chairs. Regards Regards, Philip *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* *Twitter: @VlawDC* *"Luck is the residue of design" -- Branch Rickey* *From:* ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction- bounces@icann.org] *On Behalf Of *parminder *Sent:* Tuesday, January 10, 2017 11:31 PM *To:* Mueller, Milton L; ws2-jurisdiction@icann.org *Subject:* Re: [Ws2-jurisdiction] Epistemological basis of sub-group's working - and my objection to the so called consensus On Wednesday 11 January 2017 04:48 AM, Mueller, Milton L wrote: Actually you are misrepresenting the situation, Parminder. At least two of the “no” votes to which you refer were not votes against proceeding with the version of Q4 we ended up adopting, they were expressing preferences for small alterations in wording. You are wrong, or rather misrepresenting things, Milton. Not just two "no" votes were expressing preference for what you call as small alterations in wording,* in fact, all three "no" votes (including mine) were calling for just that small alteration. * Which brings us to the key question: why did the chair rush calling consensus on one text, rather than, as is his job, to try to persuade acceptance of small changes that could make all happy? I was quite happy with Seun's alternation to David's text, and voted for it. But suddenly, majoratarianism, rather than a spirit of compromise, took control, and a consensus was triumphantly called, and then celebrated. Is is not the Chair's job to see if we could arrive at a text that all agreed, when, as you say, the nay sayers only wanted small alterations of wording. This, especially in a context that the wording of the question was a hotly contested subject for more than a month here. And the chair could notice the developed - developing country divide in the voting. Was it then proper for the Chair to bludgeon the group into a quick "consensus" rather than - at this last stages where the positions had come rather close, and we were ready to work on David's text (which itself was unfairly forced on us, in preference to earlier texts, and subsequent amendments to David's) -- seek compromises and a text that everyone agreed. Also please notice that Seun and I proposed amendments to David's text well in advance over the elist. These were not put on the screen. I kept insisting that we start with the 7 alternatives of the last call, and also put Seun/ my alteration on the screen. I repeatedly got no response from the chair. I then cut pasted the text thrice in the chat window - still no response. Vidushi make strong appeals thrice to put these texts on the screen, but to no avail. I had to practically call a point of order to get the chair to then, very belatedly, put that text on the screen. But no attempt was made - which is a chair's job to do - to see if compromise could be got. We had much come down from our position to begin with last call's 7 options - or in fact were forced to come down - and were ready to work on David's text, suggesting small changes. But the chair, and following him the group, made no effort to try compromises. I think this was a miscarriage of an open participatory process. parminder *From:* ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction- bounces@icann.org <ws2-jurisdiction-bounces@icann.org>] *On Behalf Of * parminder *Sent:* Tuesday, January 10, 2017 1:52 PM *To:* ws2-jurisdiction@icann.org *Subject:* Re: [Ws2-jurisdiction] Epistemological basis of sub-group's working - and my objection to the so called consensus I would also like it to be on record that the so called consensus was decided on basis of 11 to 3 votes, which were neatly divided along the lines of developed countries based persons and developing country based ones. All those who voted "yes" to the final formulation were from developed countries, overwhelmingly US based (which has current jurisdiction on ICANN), and all those from developing countries voted "no". There were only three participants from developing countries, and all voted "no". I must however state that many from developed countries did not vote either way. I am all for friendship and camaraderie, but there is a limit to playing down such significant facts and differences, especially in relation to such an important geopolitical issue as the jurisdictional oversight over ICANN. This particular fact of how voting was split cannot be ignored. parminder On Tuesday 10 January 2017 11:59 PM, parminder wrote: Dear Co-Chairs/ All I understand that the Chairs will right now be busy drafting a report to submit for the CCWG meeting tomorrow indicating consensus on the questionnaire as seems to have been agreed in today's call. Since I made a formal objection to the process, I will like to clarify the basis of my objection, putting it on record. My objection mainly arises from the fact that that the jurisdiction sub-group seems to be deciding a new, innovative, and completely unjust, rule for its working. It apparently has decided that in taking public/ community input into its work, *it will accept only such inputs that are fully and exclusively based on actual occurrences/ instances **that can be proven to have happened in the past*. I expect that, in the typical creeping acquisition way, this new rule would then also be applied to the discussions, and to making recommendations, by the group itself. This is a unique and significant epistemological stance. Importantly, such a stance was not applied to the work of work-stream I of CCWG, for coming up with a new accountability mechanism. It was never insisted that only such "facts" as arise from actual occurrences in the past can be the basis of suggesting any institutional change. Even in other groups of work-stream 2, like those dealing with transparency, human rights framework, etc, it is not a condition that any institutional change has to be based on facts arising from actual "verifiable occurrences" in the past, and the implications arising thereof. I have some passing acquaintance about the stage of outputs from the subgroups on transparency and human rights, and I know for a fact that *there has never been a condition that any institutional innovation can only arise from "verifiable occurrences" in the past, absent which no change can be suggested or made*. In the circumstance, it is question of fairness and natural justice, to ask why a jurisdiction related institutional change can only be based on facts that directly arise from clearly verifiable past occurrences. What is so special about jurisdiction related institutional changes - which is the mandate of a separate sub group, and about which issue many actors were insistent since the very start that it should be given full consideration? I am happy to shown otherwise, but right now I can only think that this is being done with the intention to fend off the discussion going in directions that certain actors fear would not serve their interests. If one fears losing a case on cannons of reason, justice and preponderance of public opinion, the best thing to do - if one is powerful enough - is to simply change the rules of how a decision process will be conducted, and what are the legitimate or illegitimate inputs into it. That is exactly what has been done in this case. It strains the credibility of ICANN's so called open process; whose first rule seems to be, throw so much resources at any important issue as to overwhelm any discussion about it, and then, if "problems" persist, simply change the rules and frame new ones, as has been done in this case. I cannot accept that an ICANN WG cannot trust the community/ public to give their free and unconstrained views on a key issue central to its mandate. And that it should resort to making novel, and absurd rules, about what can and what cannot be said by the public/ community as inputs into its work. This especially when in very similar parallel processes there exists no such rule. This new rule changes the very basis of the working of this sub group, and almost completely hamstrings it. parminder _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction ------------------------------ No virus found in this message. Checked by AVG - www.avg.com <http://www.avg.com/email-signature> Version: 2016.0.7996 / Virus Database: 4749/13706 - Release Date: 01/04/17 _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
Responses below. Absent extraordinary developments, I will refrain from any further comments on the subject of the questionnaire until we receive and review the answers it elicits. Best to all 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 Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey From: Seun Ojedeji [mailto:seun.ojedeji@gmail.com] Sent: Wednesday, January 11, 2017 12:22 PM To: Phil Corwin Cc: Mueller, Milton L; ws2-jurisdiction; parminder Subject: Re: [Ws2-jurisdiction] Epistemological basis of sub-group's working - and my objection to the so called consensus Sent from my LG G4 Kindly excuse brevity and typos On 11 Jan 2017 4:27 p.m., "Phil Corwin" <psc@vlaw-dc.com<mailto:psc@vlaw-dc.com>> wrote: We flatter ourselves too much if we believe that the precise wording of any question will constrain anyone responding to it from putting forth whatever point of view they wish to convey in an answer regardless of that wording. The precision required for the wording of a questionnaire is of a lesser degree than that required for final recommendations. SO: With respect, I will say you probably didn't put the above to practice then since you opposed a "minor" edit that asked for factually possible problems; If you indeed recognise that the responses received will merely be the beginning of a long process to final recommendation then you(we) should not have reacted to mere questions the way you(we) did - The questions could have been as flexible and clear as much as possible so long as it's requesting for facts. - we have an opportunity to produce some encompassing outcome on jurisdiction matter but we already blew it on fears that I have no idea where it's coming from. It would have made sense if we spent the energy in opposing responses that goes the direction of change in jurisdiction than spending it on not even granting a listening ears in the first place by rejecting certain questionnaire construct. This morning I supported the version of the question that I thought best, and therefore did not support lesser versions. Our ears have been listening to this back-and-forth for weeks and it was time to act. Finally, it is not the job of the chair to “make all happy”. Indeed, I have yet to participate in any policy process anywhere that makes all participants equally happy. Further, the general rule of thumb regarding a policy process is that the final product is probably fair if participants in its shaping are equally unhappy about what they had to concede to reach consensus agreement. SO: I wonder how you will do the analysis to conclude that all sides are equally unhappy in this particular event(are you unhappy? If yes why?). I also wonder what outcome of question 4 indicates that views were applied in a balanced way. (Ah okay, for instance I got the 4a, 4b numbering suggestion accepted :-) ). I am happy we have concluded the questionnaire and can move on to other matters. It is the job of the chair to move us toward consensus, not unanimity of happiness, and to fulfill our charge within the allotted timespan. SO: It's the job of the chair to first observe the discussions (which incudes listening to everyone "both on the list and on call", considering/addressing issues raised, considering participation diversity et all) and then check consensus. Even though i may have a different "ultimate" goal from the 3 that voted against, I definitely would have made a number 4 if I were on the call because I did not observe a healthy discussion on this topic. - to gang-up against just a question in the manner observed isn't IMO an healthy one for MS improvement. Whether or not our discussion was healthy is a subjective call, but objectively it has gone on for weeks. And reaching consensus is not ganging up. Overall we need to face the reality of lack of balance (which is unavoidable) but we need to ensure its negative impact is reduced as much as possible. I will again pray wisdom for the Co-Chairs. Geographic distribution is not the sole measure of diversity. But amen. Regards Regards, Philip 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 Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey From: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org>] On Behalf Of parminder Sent: Tuesday, January 10, 2017 11:31 PM To: Mueller, Milton L; ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org> Subject: Re: [Ws2-jurisdiction] Epistemological basis of sub-group's working - and my objection to the so called consensus On Wednesday 11 January 2017 04:48 AM, Mueller, Milton L wrote: Actually you are misrepresenting the situation, Parminder. At least two of the “no” votes to which you refer were not votes against proceeding with the version of Q4 we ended up adopting, they were expressing preferences for small alterations in wording. You are wrong, or rather misrepresenting things, Milton. Not just two "no" votes were expressing preference for what you call as small alterations in wording, in fact, all three "no" votes (including mine) were calling for just that small alteration. Which brings us to the key question: why did the chair rush calling consensus on one text, rather than, as is his job, to try to persuade acceptance of small changes that could make all happy? I was quite happy with Seun's alternation to David's text, and voted for it. But suddenly, majoratarianism, rather than a spirit of compromise, took control, and a consensus was triumphantly called, and then celebrated. Is is not the Chair's job to see if we could arrive at a text that all agreed, when, as you say, the nay sayers only wanted small alterations of wording. This, especially in a context that the wording of the question was a hotly contested subject for more than a month here. And the chair could notice the developed - developing country divide in the voting. Was it then proper for the Chair to bludgeon the group into a quick "consensus" rather than - at this last stages where the positions had come rather close, and we were ready to work on David's text (which itself was unfairly forced on us, in preference to earlier texts, and subsequent amendments to David's) -- seek compromises and a text that everyone agreed. Also please notice that Seun and I proposed amendments to David's text well in advance over the elist. These were not put on the screen. I kept insisting that we start with the 7 alternatives of the last call, and also put Seun/ my alteration on the screen. I repeatedly got no response from the chair. I then cut pasted the text thrice in the chat window - still no response. Vidushi make strong appeals thrice to put these texts on the screen, but to no avail. I had to practically call a point of order to get the chair to then, very belatedly, put that text on the screen. But no attempt was made - which is a chair's job to do - to see if compromise could be got. We had much come down from our position to begin with last call's 7 options - or in fact were forced to come down - and were ready to work on David's text, suggesting small changes. But the chair, and following him the group, made no effort to try compromises. I think this was a miscarriage of an open participatory process. parminder From: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of parminder Sent: Tuesday, January 10, 2017 1:52 PM To: ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org> Subject: Re: [Ws2-jurisdiction] Epistemological basis of sub-group's working - and my objection to the so called consensus I would also like it to be on record that the so called consensus was decided on basis of 11 to 3 votes, which were neatly divided along the lines of developed countries based persons and developing country based ones. All those who voted "yes" to the final formulation were from developed countries, overwhelmingly US based (which has current jurisdiction on ICANN), and all those from developing countries voted "no". There were only three participants from developing countries, and all voted "no". I must however state that many from developed countries did not vote either way. I am all for friendship and camaraderie, but there is a limit to playing down such significant facts and differences, especially in relation to such an important geopolitical issue as the jurisdictional oversight over ICANN. This particular fact of how voting was split cannot be ignored. parminder On Tuesday 10 January 2017 11:59 PM, parminder wrote: Dear Co-Chairs/ All I understand that the Chairs will right now be busy drafting a report to submit for the CCWG meeting tomorrow indicating consensus on the questionnaire as seems to have been agreed in today's call. Since I made a formal objection to the process, I will like to clarify the basis of my objection, putting it on record. My objection mainly arises from the fact that that the jurisdiction sub-group seems to be deciding a new, innovative, and completely unjust, rule for its working. It apparently has decided that in taking public/ community input into its work, it will accept only such inputs that are fully and exclusively based on actual occurrences/ instances that can be proven to have happened in the past. I expect that, in the typical creeping acquisition way, this new rule would then also be applied to the discussions, and to making recommendations, by the group itself. This is a unique and significant epistemological stance. Importantly, such a stance was not applied to the work of work-stream I of CCWG, for coming up with a new accountability mechanism. It was never insisted that only such "facts" as arise from actual occurrences in the past can be the basis of suggesting any institutional change. Even in other groups of work-stream 2, like those dealing with transparency, human rights framework, etc, it is not a condition that any institutional change has to be based on facts arising from actual "verifiable occurrences" in the past, and the implications arising thereof. I have some passing acquaintance about the stage of outputs from the subgroups on transparency and human rights, and I know for a fact that there has never been a condition that any institutional innovation can only arise from "verifiable occurrences" in the past, absent which no change can be suggested or made. In the circumstance, it is question of fairness and natural justice, to ask why a jurisdiction related institutional change can only be based on facts that directly arise from clearly verifiable past occurrences. What is so special about jurisdiction related institutional changes - which is the mandate of a separate sub group, and about which issue many actors were insistent since the very start that it should be given full consideration? I am happy to shown otherwise, but right now I can only think that this is being done with the intention to fend off the discussion going in directions that certain actors fear would not serve their interests. If one fears losing a case on cannons of reason, justice and preponderance of public opinion, the best thing to do - if one is powerful enough - is to simply change the rules of how a decision process will be conducted, and what are the legitimate or illegitimate inputs into it. That is exactly what has been done in this case. It strains the credibility of ICANN's so called open process; whose first rule seems to be, throw so much resources at any important issue as to overwhelm any discussion about it, and then, if "problems" persist, simply change the rules and frame new ones, as has been done in this case. I cannot accept that an ICANN WG cannot trust the community/ public to give their free and unconstrained views on a key issue central to its mandate. And that it should resort to making novel, and absurd rules, about what can and what cannot be said by the public/ community as inputs into its work. This especially when in very similar parallel processes there exists no such rule. This new rule changes the very basis of the working of this sub group, and almost completely hamstrings it. parminder _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction ________________________________ No virus found in this message. Checked by AVG - www.avg.com<http://www.avg.com/email-signature> Version: 2016.0.7996 / Virus Database: 4749/13706 - Release Date: 01/04/17 _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction ________________________________ No virus found in this message. 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You are wrong, or rather misrepresenting things, Milton. Not just two "no" votes were expressing preference for what you call as small alterations in wording, in fact, all three "no" votes (including mine) were calling for just that small alteration. MM: What I meant was that only one of the three people you refer to - namely you - expressed a view that going ahead was unacceptable. The other two simply preferred to have the wording changed, but were willing to go ahead without the (yes, minor) wording change they preferred.
On Wednesday 11 January 2017 09:14 PM, Mueller, Milton L wrote:
You are wrong, or rather misrepresenting things, Milton. Not just two "no" votes were expressing preference for what you call as small alterations in wording,*in fact, /all three "no" votes (including mine) were calling for just that small alteration. /**//*
/ /
MM: What I meant was that only one of the three people you refer to – namely you – expressed a view that going ahead was unacceptable. The other two simply preferred to have the wording changed, but were willing to go ahead without the (yes, minor) wording change they preferred. / /
/I dont see where you are reading the vote of these "other two" as agreeing to go ahead with the David's text. They clearly voted against, the only time a vote on text was called./ /The only point on which I alone voted against was, when Greg asked, and I quote "//We seem to have a consensus position. Anyone objecting to this being the consensus?" This was a call to agree or disagree with the "process' not the substance or text under judgement. / // /So, yes, I alone said, I do not agree with the consensus process. No one else did. Both you and Greg, in an earlier email, is taking it to be a 11-1 vote for the "text" finally adopted. It was a 11-3 vote, till the end. The opposing 3 never withdrew their opposition to the text finally agreed. Not objecting to a process being called consensus - as I did object - does not make them agree to the text under consideration. It is simple, isnt it./ // /The point may be moot now, but lets not misrepresent facts. / // /And then if the proposed amendments to David's text were really 'minor" as you re-assert, why did you / others not try and agree with them?/ // // / parminder /
/ /
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Clearly, Parminder, you are having trouble understanding the concept of reaching agreement in a group. The 2 other voters expressed a preference for different wording. They discovered that there was very little support among others in the group for their preferred wording. So they accepted the fact that their wording would not win support and chose to go ahead with the wording that had the most support. In other words, they chose to give up a small thing in order to get a bigger, more important thing, namely a Q4 that addresses the broader issues of jurisdiction. You seem to have completely lost sight of the fact that without these compromises, there is a very high chance that there would be no Q4 at all, and possibly even no questions 1-4 at all. So we have one objection, and one only, to the "so-called consensus." Your view has been heard, repeatedly, is understood, and no one else agrees with it. And that qualifies as rough consensus in any book. --MM From: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of parminder Sent: Wednesday, January 11, 2017 11:10 AM To: ws2-jurisdiction@icann.org Subject: Re: [Ws2-jurisdiction] Epistemological basis of sub-group's working - and my objection to the so called consensus On Wednesday 11 January 2017 09:14 PM, Mueller, Milton L wrote: You are wrong, or rather misrepresenting things, Milton. Not just two "no" votes were expressing preference for what you call as small alterations in wording, in fact, all three "no" votes (including mine) were calling for just that small alteration. MM: What I meant was that only one of the three people you refer to - namely you - expressed a view that going ahead was unacceptable. The other two simply preferred to have the wording changed, but were willing to go ahead without the (yes, minor) wording change they preferred. I dont see where you are reading the vote of these "other two" as agreeing to go ahead with the David's text. They clearly voted against, the only time a vote on text was called. The only point on which I alone voted against was, when Greg asked, and I quote "We seem to have a consensus position. Anyone objecting to this being the consensus?" This was a call to agree or disagree with the "process' not the substance or text under judgement. So, yes, I alone said, I do not agree with the consensus process. No one else did. Both you and Greg, in an earlier email, is taking it to be a 11-1 vote for the "text" finally adopted. It was a 11-3 vote, till the end. The opposing 3 never withdrew their opposition to the text finally agreed. Not objecting to a process being called consensus - as I did object - does not make them agree to the text under consideration. It is simple, isnt it. The point may be moot now, but lets not misrepresent facts. And then if the proposed amendments to David's text were really 'minor" as you re-assert, why did you / others not try and agree with them? parminder _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
On Wednesday 11 January 2017 11:38 PM, Mueller, Milton L wrote:
Clearly, Parminder, you are having trouble understanding the concept
Yes, Milton, I have cognitive deficiencies, you will just have to put up with it... p
of reaching agreement in a group.
The 2 other voters expressed a preference for different wording. They discovered that there was very little support among others in the group for their preferred wording. So they accepted the fact that their wording would not win support and chose to go ahead with the wording that had the most support. In other words, they chose to give up a small thing in order to get a bigger, more important thing, namely a Q4 that addresses the broader issues of jurisdiction.
You seem to have completely lost sight of the fact that without these compromises, there is a very high chance that there would be no Q4 at all, and possibly even no questions 1-4 at all.
So we have one objection, and one only, to the “so-called consensus.” Your view has been heard, repeatedly, is understood, and no one else agrees with it. And that qualifies as rough consensus in any book.
--MM
*From:*ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] *On Behalf Of *parminder *Sent:* Wednesday, January 11, 2017 11:10 AM *To:* ws2-jurisdiction@icann.org *Subject:* Re: [Ws2-jurisdiction] Epistemological basis of sub-group's working - and my objection to the so called consensus
On Wednesday 11 January 2017 09:14 PM, Mueller, Milton L wrote:
You are wrong, or rather misrepresenting things, Milton. Not just two "no" votes were expressing preference for what you call as small alterations in wording,*in fact, /all three "no" votes (including mine) were calling for just that small alteration. /*
/ /
MM: What I meant was that only one of the three people you refer to – namely you – expressed a view that going ahead was unacceptable. The other two simply preferred to have the wording changed, but were willing to go ahead without the (yes, minor) wording change they preferred.
/I dont see where you are reading the vote of these "other two" as agreeing to go ahead with the David's text. They clearly voted against, the only time a vote on text was called./ /The only point on which I alone voted against was, when Greg asked, and I quote //"//We seem to have a consensus position. Anyone objecting to this being the consensus?" This was a call to agree or disagree with the "process' not the substance or text under judgement. /
/So, yes, I alone said, I do not agree with the consensus process. No one else did. Both you and Greg, in an earlier email, is taking it to be a 11-1 vote for the "text" finally adopted. It was a 11-3 vote, till the end. The opposing 3 never withdrew their opposition to the text finally agreed. Not objecting to a process being called consensus - as I did object - does not make them agree to the text under consideration. It is simple, isnt it./
/The point may be moot now, but lets not misrepresent facts. /
/And then if the proposed amendments to David's text were really 'minor" as you re-assert, why did you / others not try and agree with them?/
/ parminder //
/
/
/
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Please accept cultural differences … not everyone lives in countries were legal concepts are that important as in good old America. It is very fine that we have a consensus and now it is hard work, in particular for those trying to find problems, alternative solutions etc. Jurisdiction (like many other topics) is a question of best possible solution, not a beauty contest with a public vote. I may remind you on the public consultation about Investment Dispute Settlement by the European Commission – here, it happened. Best, Erich Schweighofer Von: parminder<mailto:parminder@itforchange.net> Gesendet: Donnerstag, 12. Jänner 2017 07:24 An: Mueller, Milton L<mailto:milton@gatech.edu>; ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org> Betreff: Re: [Ws2-jurisdiction] Epistemological basis of sub-group's working - and my objection to the so called consensus On Wednesday 11 January 2017 11:38 PM, Mueller, Milton L wrote: Clearly, Parminder, you are having trouble understanding the concept Yes, Milton, I have cognitive deficiencies, you will just have to put up with it... p of reaching agreement in a group. The 2 other voters expressed a preference for different wording. They discovered that there was very little support among others in the group for their preferred wording. So they accepted the fact that their wording would not win support and chose to go ahead with the wording that had the most support. In other words, they chose to give up a small thing in order to get a bigger, more important thing, namely a Q4 that addresses the broader issues of jurisdiction. You seem to have completely lost sight of the fact that without these compromises, there is a very high chance that there would be no Q4 at all, and possibly even no questions 1-4 at all. So we have one objection, and one only, to the “so-called consensus.” Your view has been heard, repeatedly, is understood, and no one else agrees with it. And that qualifies as rough consensus in any book. --MM From: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of parminder Sent: Wednesday, January 11, 2017 11:10 AM To: ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org> Subject: Re: [Ws2-jurisdiction] Epistemological basis of sub-group's working - and my objection to the so called consensus On Wednesday 11 January 2017 09:14 PM, Mueller, Milton L wrote: You are wrong, or rather misrepresenting things, Milton. Not just two "no" votes were expressing preference for what you call as small alterations in wording, in fact, all three "no" votes (including mine) were calling for just that small alteration. MM: What I meant was that only one of the three people you refer to – namely you – expressed a view that going ahead was unacceptable. The other two simply preferred to have the wording changed, but were willing to go ahead without the (yes, minor) wording change they preferred. I dont see where you are reading the vote of these "other two" as agreeing to go ahead with the David's text. They clearly voted against, the only time a vote on text was called. The only point on which I alone voted against was, when Greg asked, and I quote "We seem to have a consensus position. Anyone objecting to this being the consensus?" This was a call to agree or disagree with the "process' not the substance or text under judgement. So, yes, I alone said, I do not agree with the consensus process. No one else did. Both you and Greg, in an earlier email, is taking it to be a 11-1 vote for the "text" finally adopted. It was a 11-3 vote, till the end. The opposing 3 never withdrew their opposition to the text finally agreed. Not objecting to a process being called consensus - as I did object - does not make them agree to the text under consideration. It is simple, isnt it. The point may be moot now, but lets not misrepresent facts. And then if the proposed amendments to David's text were really 'minor" as you re-assert, why did you / others not try and agree with them? parminder _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
On Thursday 12 January 2017 12:17 PM, Schweighofer Erich wrote:
Please accept cultural differences … not everyone lives in countries were legal concepts are that important as in good old America. Erich, India has good legal traditions, and I enough training in conducting formal processes. I just cant stand bad manners, and I know and work with enough Americans to know the difference. I could still desist from responding to such emails, but there is a larger consideration. This is one of the many things that limit participation of developing country actors, and I would do my best, within my limited means, to try and make the place safer for them. Meanwhile, I quite agree with what you say below. parminder
It is very fine that we have a consensus and now it is hard work, in particular for those trying to find problems, alternative solutions etc.
Jurisdiction (like many other topics) is a question of best possible solution, not a beauty contest with a public vote. I may remind you on the public consultation about Investment Dispute Settlement by the European Commission – here, it happened.
Best, Erich Schweighofer
Von: parminder<mailto:parminder@itforchange.net> Gesendet: Donnerstag, 12. Jänner 2017 07:24 An: Mueller, Milton L<mailto:milton@gatech.edu>; ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org> Betreff: Re: [Ws2-jurisdiction] Epistemological basis of sub-group's working - and my objection to the so called consensus
On Wednesday 11 January 2017 11:38 PM, Mueller, Milton L wrote:
Clearly, Parminder, you are having trouble understanding the concept
Yes, Milton, I have cognitive deficiencies, you will just have to put up with it... p
of reaching agreement in a group. The 2 other voters expressed a preference for different wording. They discovered that there was very little support among others in the group for their preferred wording. So they accepted the fact that their wording would not win support and chose to go ahead with the wording that had the most support. In other words, they chose to give up a small thing in order to get a bigger, more important thing, namely a Q4 that addresses the broader issues of jurisdiction.
You seem to have completely lost sight of the fact that without these compromises, there is a very high chance that there would be no Q4 at all, and possibly even no questions 1-4 at all.
So we have one objection, and one only, to the “so-called consensus.” Your view has been heard, repeatedly, is understood, and no one else agrees with it. And that qualifies as rough consensus in any book.
--MM
From: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of parminder Sent: Wednesday, January 11, 2017 11:10 AM To: ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org> Subject: Re: [Ws2-jurisdiction] Epistemological basis of sub-group's working - and my objection to the so called consensus
On Wednesday 11 January 2017 09:14 PM, Mueller, Milton L wrote:
You are wrong, or rather misrepresenting things, Milton. Not just two "no" votes were expressing preference for what you call as small alterations in wording, in fact, all three "no" votes (including mine) were calling for just that small alteration.
MM: What I meant was that only one of the three people you refer to – namely you – expressed a view that going ahead was unacceptable. The other two simply preferred to have the wording changed, but were willing to go ahead without the (yes, minor) wording change they preferred.
I dont see where you are reading the vote of these "other two" as agreeing to go ahead with the David's text. They clearly voted against, the only time a vote on text was called. The only point on which I alone voted against was, when Greg asked, and I quote "We seem to have a consensus position. Anyone objecting to this being the consensus?" This was a call to agree or disagree with the "process' not the substance or text under judgement.
So, yes, I alone said, I do not agree with the consensus process. No one else did. Both you and Greg, in an earlier email, is taking it to be a 11-1 vote for the "text" finally adopted. It was a 11-3 vote, till the end. The opposing 3 never withdrew their opposition to the text finally agreed. Not objecting to a process being called consensus - as I did object - does not make them agree to the text under consideration. It is simple, isnt it.
The point may be moot now, but lets not misrepresent facts.
And then if the proposed amendments to David's text were really 'minor" as you re-assert, why did you / others not try and agree with them?
parminder
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I would like to support this compromise. We are looking for facts, academic analysis and the like, but not a vote on „best jurisdiction“. We should be as conservative but also forward-looking as the Romans: improving as best as possible but no change if there is no real advantage. As an expert in international law, I am aware of the many problems with absolute immunities of international organisations. It may take some time to find the right balance with a relative immunity (like for States). Only strong cases with facts help in this discussion. Best, Erich P.S. I may miss part of the call due to another Meeting. Sorry. ao. Univ.-Prof. Mag. DDr. Erich Schweighofer Arbeitsgruppe Rechtsinformatik Institut für Europarecht, Internationales Recht und Rechtsvergleichung, Universität Wien Schottenbastei 10-16/2/5, 1010 Wien, AT Tel. +43 1 4277 35305, Fax +43 1 4277 9353 Erich.Schweighofer@univie.ac.at http://rechtsinformatik.univie.ac.at Von: Steve DelBianco<mailto:sdelbianco@netchoice.org> Gesendet: Dienstag, 10. Jänner 2017 09:56 An: Paul Rosenzweig<mailto:paul.rosenzweig@redbranchconsulting.com>; 'matthew shears'<mailto:mshears@cdt.org>; 'McAuley, David'<mailto:dmcauley@verisign.com>; ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org> Betreff: Re: [Ws2-jurisdiction] Jurisdiction Questionnaire: RESPONSE REQUESTED On our prior Jurisdiction call, I did not support the proposed question 4 or any of the 7 alternatives. But I'd like to support David McAuley’s restatement of question 4 (below) as a compromise that could allow us to gather useful evidence and information — not just opinions. Are you aware of any material, documented instance(s) where ICANN has been unable to pursue its Mission because of its jurisdiction? If so, please provide documentation. Are you aware of and able to document the existence of an alternative jurisdiction where ICANN would not be so prevented from pursuing its Mission? If so, please provide documentation. From: <ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org>> on behalf of Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>> Date: Monday, January 9, 2017 at 2:03 PM I agree completely with David and Matthew. In particular this: “DM: Current jurisdiction has worked well for nineteen years and we just finished reorganizing things at great expense to better fit within California with enforceable Empowered Community powers. Is WS2 to change that? MS: That is clearly not this group's mandate.” Paul From: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of matthew shears Sent: Sunday, January 8, 2017 2:23 PM David, all I am similarly concerned. Please see inline On 07/01/2017 21:55, McAuley, David wrote: In my personal opinion we are wandering blindly into unwise, unacceptable territory – very possibly inviting a quagmire of suppositions and opinions that would pose the near certainty of derailing our work. Agreed and I have a related concern. As far as I am aware we have not defined nor agreed what purpose/end the results of the questionnaire would be put. And how we would deal with the results, what weight the results would be given in determining our direction or way forward, or more importantly, any "findings" of the group (although I am a little at a loss to think how we might agree them). Given the lackluster support for the various alternatives on the last call I am concerned that there seems to be little support, or an acceptable level of comfort, for this approach as a whole. We should not let the perfect be the enemy of the good, but I am unconvinced that the questionnaire as currently proposed could actually lead to a “good” outcome so I don’t see the good at peril here. If we conclude that a questionnaire must go out then I support questions 1-3 as widely supported in the survey we did – with no question 4. This would be my preference as well, especially as some of the alternate versions for Q4 seems to go far beyond the relatively limited mandate of this group. If any form of Q4 is to be included it must be fact-based, not opinion-based. Here is what I suggest as a compromise path to resolve the Q4 issue – basically one question in two parts: Are you aware of any material, documented instance(s) where ICANN has been unable to pursue its Mission because of its jurisdiction? If so, please provide documentation. Are you aware of and able to document the existence of an alternative jurisdiction where ICANN would not be so prevented from pursuing its Mission? If so, please provide documentation. Such a questionnaire could of course lead to a full-scale legal due-diligence exercise for suggested alternatives as we recently did with respect to California in Work Stream One (because we would need a demonstration that any such alternative, while possibly solving one perceived problem, did not allow others). Current jurisdiction has worked well for nineteen years and we just finished reorganizing things at great expense to better fit within California with enforceable Empowered Community powers. Is WS2 to change that? That is clearly not this group's mandate. I think we have a different mission than that to accomplish by June. Our mission is essentially to look at settlement of dispute jurisdiction issues and right now that seems like plenty to try to get done by June. Agreed. That Q4 is still under consideration, after failing to gain a clear consensus and even getting substantially less support than question 5 (which basically asked if Q’s 1-3 should go out if Q4 was rejected), is puzzling. How can we release Q4 in these circumstances? This is too important to “wing it and let’s see what happens.” We don’t do survey questions for a living. Don’t we at least need to guarantee that our questions stay within ICANN’s mission and call for answers to do the same? Mathieu, as I recall, said in chat that respondents often go beyond the bounds of what is asked – that tendency itself seems enough to delete Question 4 at the very least. We should just look at the jurisdiction of contracts and dispute settlements, as paragraph 06 of the Final Report puts it. A reasonable place to "restart" our work, I would suggest. Finally, the questionnaire is sensitive enough that we will likely encounter the same debate when we run it by the full CCWG. Most likely. Matthew David David McAuley International Policy Manager Verisign Inc. 703-948-4154 From:ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Greg Shatan Sent: Saturday, January 07, 2017 1:23 PM To: ws2-jurisdiction Subject: [EXTERNAL] [Ws2-jurisdiction] Jurisdiction Questionnaire: RESPONSE REQUESTED All, We made some good progress on our call on Friday, January 6. Following a wide-ranging discussion, we were able to make some headway on refining the draft questionnaire. I encourage those who missed the call to review the recording and notes. Specifically, we came to a preliminary conclusion on revising the Preamble and Question 1, subject to comment on this list and a final discussion on our next call (Tuesday, January 10 at 13:00). Question 2 had no revisions suggested, and Question 3 had only one revision suggested. The Preamble and Questions 1, 2 and 3 (with the proposed revision in "track changes") are in the first document below (Word and PDF documents) and also in text below. Please review this version of the Preamble and Questions 1-3 and provide support (or lack of support) and/or comments for this portion. We also discussed several aspects of Question 4, including the purpose of the question; whether the question is different in nature from Questions 1-3; whether or not the question should be included in this questionnaire, a subsequent questionnaire or not at all; the types of responses desired (and the types expected); and the drafting of the question itself. With these topics and seven drafting alternatives (and the ability to pick and choose elements of those alternatives), this required more time than we had left on the call. Therefore, we did not come to any preliminary conclusions on Question 4. The drafting alternatives for Question 4 (including the current version) are in the second draft document (Word and PDF). Please look at the alternatives carefully, particularly if you have not supported sending question 4 in its current form. Please review the options for Question 4 and respond, indicating (a) Which version(s) of Question 4 you could support and which you would object to, and (b) If the answer to (a) is "none," how you would change or combine one or more alternatives in order to support it. We will conclude this discussion on our call of January 10, so please provide your thoughts and responses before then. Thank you. Greg VERSION OF PREAMBLE AND QUESTIONS 1-3 FOR REVIEW PREAMBLE The newly-adopted ICANN bylaws created several Work Stream 2 accountability subgroups. One of them, the subgroup on Jurisdiction, is posing the questions below for community input into the subgroup’s deliberations. As directed by Bylaw Article 27, Section 27.1(b)(vi)<https://www.icann.org/resources/pages/governance/bylaws-en/#article27> and to the extent set forth in the CCWG-Accountability Final Report<https://community.icann.org/pages/viewpage.action?pageId=58723827&preview=/58723827/58726532/Main%20Report%20-%20FINAL-Revised.pdf>,[1] the Jurisdiction subgroup is addressing jurisdiction*-related questions, including how choice of jurisdiction and applicable laws for dispute settlement impact ICANN's accountability and the actual operation of policies. To help the subgroup in these endeavors we are asking you to consider and respond to the following specific questions. In this regard, the subgroup is asking for concrete, factual submissions (positive, negative, or neutral) that will help ensure that the subgroup’s deliberations are informed, fact-based, and address real issues. The subgroup is interested in all types of jurisdiction-related factual experiences, not just those involving actual disputes/court cases. QUESTION 1 Has your business, your privacy or your ability to use or purchase domain name-related services been affected by ICANN's jurisdiction* in any way? If the answer is Yes, please describe specific cases, situations or incidents, including the date, the parties involved, and links to any relevant documents. Please note that “affected” may refer to positive and/or negative effects. QUESTION 2 Has ICANN's jurisdiction* affected any dispute resolution process or litigation related to domain names you have been involved in? If the answer is Yes, please describe specific cases, situations or incidents, including the date, the parties involved, and links to any relevant documents. Please note that “affected” may refer to positive and/or negative effects. QUESTION 3 Do you have copies of and/or links to any verifiable reports of experiences of other parties that would be responsive to the questions above? If the answer is yes, please provide these copies and/or links. Please provide either first-person accounts or reliable third-party accounts such as news reports; please do not provide your own version of events. ________________________________ [1]See CCWG-Accountability Main Report, paragraphs 6 and 234, and Annex 12, paragraphs 25-31. * For this Questionnaire, “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.
On Tuesday 10 January 2017 03:19 PM, Schweighofer Erich wrote:
I would like to support this compromise. We are looking for facts, Avri and others have been arguing for quite some time on this list about the nature of what can be called as facts, it being a broader categories than just material/ physical events that have happened in the past. Existence of a law is a fact, with or without a corresponding event of its application. If there is a law in a country that, to take a hypothetical example, anyone possessing nuclear weapons will be hanged, this law by itself remains a "fact" whether or not anyone ever have been arrested and hanged for possessing nuclear weapons.
All such structural conditions, including laws, but not just them, that can be rationally described and argued for, constitute clear "facts". Not just actual physical events that have happened in the past are "facts". Technically inclined may have such a narrow view of facts (but even for them, arent laws of physics fact, which actually are in a way only hypothetical, in that they do not exist materially), but we are here dealing with a social and political issue, and must contend with social and political meaning of "facts". Correspondingly, I would only agree with versions of questions that admit structural facts, as socially and politically understood, in what may be submitted as information in response to the questionnaire. parminder
academic analysis and the like, but not a vote on „best jurisdiction“. We should be as conservative but also forward-looking as the Romans: improving as best as possible but no change if there is no real advantage. As an expert in international law, I am aware of the many problems with absolute immunities of international organisations. It may take some time to find the right balance with a relative immunity (like for States). Only strong cases with facts help in this discussion. Best, Erich P.S. I may miss part of the call due to another Meeting. Sorry.
ao. Univ.-Prof. Mag. DDr. Erich Schweighofer Arbeitsgruppe Rechtsinformatik Institut für Europarecht, Internationales Recht und Rechtsvergleichung, Universität Wien Schottenbastei 10-16/2/5, 1010 Wien, AT Tel. +43 1 4277 35305, Fax +43 1 4277 9353 Erich.Schweighofer@univie.ac.at http://rechtsinformatik.univie.ac.at
Von: Steve DelBianco<mailto:sdelbianco@netchoice.org> Gesendet: Dienstag, 10. Jänner 2017 09:56 An: Paul Rosenzweig<mailto:paul.rosenzweig@redbranchconsulting.com>; 'matthew shears'<mailto:mshears@cdt.org>; 'McAuley, David'<mailto:dmcauley@verisign.com>; ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org> Betreff: Re: [Ws2-jurisdiction] Jurisdiction Questionnaire: RESPONSE REQUESTED
On our prior Jurisdiction call, I did not support the proposed question 4 or any of the 7 alternatives.
But I'd like to support David McAuley’s restatement of question 4 (below) as a compromise that could allow us to gather useful evidence and information — not just opinions.
Are you aware of any material, documented instance(s) where ICANN has been unable to pursue its Mission because of its jurisdiction? If so, please provide documentation.
Are you aware of and able to document the existence of an alternative jurisdiction where ICANN would not be so prevented from pursuing its Mission? If so, please provide documentation.
From: <ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org>> on behalf of Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>> Date: Monday, January 9, 2017 at 2:03 PM
I agree completely with David and Matthew. In particular this:
“DM: Current jurisdiction has worked well for nineteen years and we just finished reorganizing things at great expense to better fit within California with enforceable Empowered Community powers. Is WS2 to change that?
MS: That is clearly not this group's mandate.”
Paul
From: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of matthew shears Sent: Sunday, January 8, 2017 2:23 PM
David, all
I am similarly concerned. Please see inline
On 07/01/2017 21:55, McAuley, David wrote: In my personal opinion we are wandering blindly into unwise, unacceptable territory – very possibly inviting a quagmire of suppositions and opinions that would pose the near certainty of derailing our work.
Agreed and I have a related concern. As far as I am aware we have not defined nor agreed what purpose/end the results of the questionnaire would be put. And how we would deal with the results, what weight the results would be given in determining our direction or way forward, or more importantly, any "findings" of the group (although I am a little at a loss to think how we might agree them).
Given the lackluster support for the various alternatives on the last call I am concerned that there seems to be little support, or an acceptable level of comfort, for this approach as a whole.
We should not let the perfect be the enemy of the good, but I am unconvinced that the questionnaire as currently proposed could actually lead to a “good” outcome so I don’t see the good at peril here.
If we conclude that a questionnaire must go out then I support questions 1-3 as widely supported in the survey we did – with no question 4.
This would be my preference as well, especially as some of the alternate versions for Q4 seems to go far beyond the relatively limited mandate of this group.
If any form of Q4 is to be included it must be fact-based, not opinion-based. Here is what I suggest as a compromise path to resolve the Q4 issue – basically one question in two parts:
Are you aware of any material, documented instance(s) where ICANN has been unable to pursue its Mission because of its jurisdiction? If so, please provide documentation.
Are you aware of and able to document the existence of an alternative jurisdiction where ICANN would not be so prevented from pursuing its Mission? If so, please provide documentation.
Such a questionnaire could of course lead to a full-scale legal due-diligence exercise for suggested alternatives as we recently did with respect to California in Work Stream One (because we would need a demonstration that any such alternative, while possibly solving one perceived problem, did not allow others).
Current jurisdiction has worked well for nineteen years and we just finished reorganizing things at great expense to better fit within California with enforceable Empowered Community powers. Is WS2 to change that?
That is clearly not this group's mandate.
I think we have a different mission than that to accomplish by June. Our mission is essentially to look at settlement of dispute jurisdiction issues and right now that seems like plenty to try to get done by June.
Agreed.
That Q4 is still under consideration, after failing to gain a clear consensus and even getting substantially less support than question 5 (which basically asked if Q’s 1-3 should go out if Q4 was rejected), is puzzling. How can we release Q4 in these circumstances?
This is too important to “wing it and let’s see what happens.” We don’t do survey questions for a living. Don’t we at least need to guarantee that our questions stay within ICANN’s mission and call for answers to do the same? Mathieu, as I recall, said in chat that respondents often go beyond the bounds of what is asked – that tendency itself seems enough to delete Question 4 at the very least.
We should just look at the jurisdiction of contracts and dispute settlements, as paragraph 06 of the Final Report puts it.
A reasonable place to "restart" our work, I would suggest.
Finally, the questionnaire is sensitive enough that we will likely encounter the same debate when we run it by the full CCWG.
Most likely.
Matthew
David
David McAuley International Policy Manager Verisign Inc. 703-948-4154
From:ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Greg Shatan Sent: Saturday, January 07, 2017 1:23 PM To: ws2-jurisdiction Subject: [EXTERNAL] [Ws2-jurisdiction] Jurisdiction Questionnaire: RESPONSE REQUESTED
All,
We made some good progress on our call on Friday, January 6. Following a wide-ranging discussion, we were able to make some headway on refining the draft questionnaire. I encourage those who missed the call to review the recording and notes.
Specifically, we came to a preliminary conclusion on revising the Preamble and Question 1, subject to comment on this list and a final discussion on our next call (Tuesday, January 10 at 13:00). Question 2 had no revisions suggested, and Question 3 had only one revision suggested.
The Preamble and Questions 1, 2 and 3 (with the proposed revision in "track changes") are in the first document below (Word and PDF documents) and also in text below. Please review this version of the Preamble and Questions 1-3 and provide support (or lack of support) and/or comments for this portion.
We also discussed several aspects of Question 4, including the purpose of the question; whether the question is different in nature from Questions 1-3; whether or not the question should be included in this questionnaire, a subsequent questionnaire or not at all; the types of responses desired (and the types expected); and the drafting of the question itself. With these topics and seven drafting alternatives (and the ability to pick and choose elements of those alternatives), this required more time than we had left on the call. Therefore, we did not come to any preliminary conclusions on Question 4.
The drafting alternatives for Question 4 (including the current version) are in the second draft document (Word and PDF). Please look at the alternatives carefully, particularly if you have not supported sending question 4 in its current form. Please review the options for Question 4 and respond, indicating (a) Which version(s) of Question 4 you could support and which you would object to, and (b) If the answer to (a) is "none," how you would change or combine one or more alternatives in order to support it.
We will conclude this discussion on our call of January 10, so please provide your thoughts and responses before then. Thank you.
Greg
VERSION OF PREAMBLE AND QUESTIONS 1-3 FOR REVIEW
PREAMBLE The newly-adopted ICANN bylaws created several Work Stream 2 accountability subgroups. One of them, the subgroup on Jurisdiction, is posing the questions below for community input into the subgroup’s deliberations. As directed by Bylaw Article 27, Section 27.1(b)(vi)<https://www.icann.org/resources/pages/governance/bylaws-en/#article27> and to the extent set forth in the CCWG-Accountability Final Report<https://community.icann.org/pages/viewpage.action?pageId=58723827&preview=/58723827/58726532/Main%20Report%20-%20FINAL-Revised.pdf>,[1] the Jurisdiction subgroup is addressing jurisdiction*-related questions, including how choice of jurisdiction and applicable laws for dispute settlement impact ICANN's accountability and the actual operation of policies. To help the subgroup in these endeavors we are asking you to consider and respond to the following specific questions. In this regard, the subgroup is asking for concrete, factual submissions (positive, negative, or neutral) that will help ensure that the subgroup’s deliberations are informed, fact-based, and address real issues. The subgroup is interested in all types of jurisdiction-related factual experiences, not just those involving actual disputes/court cases.
QUESTION 1 Has your business, your privacy or your ability to use or purchase domain name-related services been affected by ICANN's jurisdiction* in any way?
If the answer is Yes, please describe specific cases, situations or incidents, including the date, the parties involved, and links to any relevant documents. Please note that “affected” may refer to positive and/or negative effects.
QUESTION 2 Has ICANN's jurisdiction* affected any dispute resolution process or litigation related to domain names you have been involved in?
If the answer is Yes, please describe specific cases, situations or incidents, including the date, the parties involved, and links to any relevant documents. Please note that “affected” may refer to positive and/or negative effects.
QUESTION 3 Do you have copies of and/or links to any verifiable reports of experiences of other parties that would be responsive to the questions above?
If the answer is yes, please provide these copies and/or links. Please provide either first-person accounts or reliable third-party accounts such as news reports; please do not provide your own version of events.
________________________________
[1]See CCWG-Accountability Main Report, paragraphs 6 and 234, and Annex 12, paragraphs 25-31.
* For this Questionnaire, “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.
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
Dear all, In the poll conducted in December last year, I could not support Q4. However, I can support Q4 as formulated in David's /Steve's mail below. I have no problems with this Q4 version been distributed together with Q1-3. Best, Finn Kind regards Finn Petersen Director of international ICT Relations DANISH BUSINESS AUTHORITY Dahlerups Pakhus Langelinie Allé 17 DK-2100 København Ø Telephone: +45 35291000 Direct: +45 35291013 Mobile: +45 20727131 E-mail: FinPet@erst.dk www.erhvervsstyrelsen.dk MINISTRY OF INDUSTRY, BUSINESS AND FINANCIAL AFFAIRS P Please consider the environment before printing this email. Fra: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] På vegne af Steve DelBianco Sendt: 9. januar 2017 22:17 Til: Paul Rosenzweig; 'matthew shears'; 'McAuley, David'; ws2-jurisdiction@icann.org Emne: Re: [Ws2-jurisdiction] Jurisdiction Questionnaire: RESPONSE REQUESTED On our prior Jurisdiction call, I did not support the proposed question 4 or any of the 7 alternatives. But I'd like to support David McAuley’s restatement of question 4 (below) as a compromise that could allow us to gather useful evidence and information — not just opinions. Are you aware of any material, documented instance(s) where ICANN has been unable to pursue its Mission because of its jurisdiction? If so, please provide documentation. Are you aware of and able to document the existence of an alternative jurisdiction where ICANN would not be so prevented from pursuing its Mission? If so, please provide documentation. From: <ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org>> on behalf of Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>> Date: Monday, January 9, 2017 at 2:03 PM I agree completely with David and Matthew. In particular this: “DM: Current jurisdiction has worked well for nineteen years and we just finished reorganizing things at great expense to better fit within California with enforceable Empowered Community powers. Is WS2 to change that? MS: That is clearly not this group's mandate.” Paul From: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of matthew shears Sent: Sunday, January 8, 2017 2:23 PM David, all I am similarly concerned. Please see inline On 07/01/2017 21:55, McAuley, David wrote: In my personal opinion we are wandering blindly into unwise, unacceptable territory – very possibly inviting a quagmire of suppositions and opinions that would pose the near certainty of derailing our work. Agreed and I have a related concern. As far as I am aware we have not defined nor agreed what purpose/end the results of the questionnaire would be put. And how we would deal with the results, what weight the results would be given in determining our direction or way forward, or more importantly, any "findings" of the group (although I am a little at a loss to think how we might agree them). Given the lackluster support for the various alternatives on the last call I am concerned that there seems to be little support, or an acceptable level of comfort, for this approach as a whole. We should not let the perfect be the enemy of the good, but I am unconvinced that the questionnaire as currently proposed could actually lead to a “good” outcome so I don’t see the good at peril here. If we conclude that a questionnaire must go out then I support questions 1-3 as widely supported in the survey we did – with no question 4. This would be my preference as well, especially as some of the alternate versions for Q4 seems to go far beyond the relatively limited mandate of this group. If any form of Q4 is to be included it must be fact-based, not opinion-based. Here is what I suggest as a compromise path to resolve the Q4 issue – basically one question in two parts: Are you aware of any material, documented instance(s) where ICANN has been unable to pursue its Mission because of its jurisdiction? If so, please provide documentation. Are you aware of and able to document the existence of an alternative jurisdiction where ICANN would not be so prevented from pursuing its Mission? If so, please provide documentation. Such a questionnaire could of course lead to a full-scale legal due-diligence exercise for suggested alternatives as we recently did with respect to California in Work Stream One (because we would need a demonstration that any such alternative, while possibly solving one perceived problem, did not allow others). Current jurisdiction has worked well for nineteen years and we just finished reorganizing things at great expense to better fit within California with enforceable Empowered Community powers. Is WS2 to change that? That is clearly not this group's mandate. I think we have a different mission than that to accomplish by June. Our mission is essentially to look at settlement of dispute jurisdiction issues and right now that seems like plenty to try to get done by June. Agreed. That Q4 is still under consideration, after failing to gain a clear consensus and even getting substantially less support than question 5 (which basically asked if Q’s 1-3 should go out if Q4 was rejected), is puzzling. How can we release Q4 in these circumstances? This is too important to “wing it and let’s see what happens.” We don’t do survey questions for a living. Don’t we at least need to guarantee that our questions stay within ICANN’s mission and call for answers to do the same? Mathieu, as I recall, said in chat that respondents often go beyond the bounds of what is asked – that tendency itself seems enough to delete Question 4 at the very least. We should just look at the jurisdiction of contracts and dispute settlements, as paragraph 06 of the Final Report puts it. A reasonable place to "restart" our work, I would suggest. Finally, the questionnaire is sensitive enough that we will likely encounter the same debate when we run it by the full CCWG. Most likely. Matthew David David McAuley International Policy Manager Verisign Inc. 703-948-4154 From:ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Greg Shatan Sent: Saturday, January 07, 2017 1:23 PM To: ws2-jurisdiction Subject: [EXTERNAL] [Ws2-jurisdiction] Jurisdiction Questionnaire: RESPONSE REQUESTED All, We made some good progress on our call on Friday, January 6. Following a wide-ranging discussion, we were able to make some headway on refining the draft questionnaire. I encourage those who missed the call to review the recording and notes. Specifically, we came to a preliminary conclusion on revising the Preamble and Question 1, subject to comment on this list and a final discussion on our next call (Tuesday, January 10 at 13:00). Question 2 had no revisions suggested, and Question 3 had only one revision suggested. The Preamble and Questions 1, 2 and 3 (with the proposed revision in "track changes") are in the first document below (Word and PDF documents) and also in text below. Please review this version of the Preamble and Questions 1-3 and provide support (or lack of support) and/or comments for this portion. We also discussed several aspects of Question 4, including the purpose of the question; whether the question is different in nature from Questions 1-3; whether or not the question should be included in this questionnaire, a subsequent questionnaire or not at all; the types of responses desired (and the types expected); and the drafting of the question itself. With these topics and seven drafting alternatives (and the ability to pick and choose elements of those alternatives), this required more time than we had left on the call. Therefore, we did not come to any preliminary conclusions on Question 4. The drafting alternatives for Question 4 (including the current version) are in the second draft document (Word and PDF). Please look at the alternatives carefully, particularly if you have not supported sending question 4 in its current form. Please review the options for Question 4 and respond, indicating (a) Which version(s) of Question 4 you could support and which you would object to, and (b) If the answer to (a) is "none," how you would change or combine one or more alternatives in order to support it. We will conclude this discussion on our call of January 10, so please provide your thoughts and responses before then. Thank you. Greg VERSION OF PREAMBLE AND QUESTIONS 1-3 FOR REVIEW PREAMBLE The newly-adopted ICANN bylaws created several Work Stream 2 accountability subgroups. One of them, the subgroup on Jurisdiction, is posing the questions below for community input into the subgroup’s deliberations. As directed by Bylaw Article 27, Section 27.1(b)(vi)<https://www.icann.org/resources/pages/governance/bylaws-en/#article27> and to the extent set forth in the CCWG-Accountability Final Report<https://community.icann.org/pages/viewpage.action?pageId=58723827&preview=/58723827/58726532/Main%20Report%20-%20FINAL-Revised.pdf>,[1] the Jurisdiction subgroup is addressing jurisdiction*-related questions, including how choice of jurisdiction and applicable laws for dispute settlement impact ICANN's accountability and the actual operation of policies. To help the subgroup in these endeavors we are asking you to consider and respond to the following specific questions. In this regard, the subgroup is asking for concrete, factual submissions (positive, negative, or neutral) that will help ensure that the subgroup’s deliberations are informed, fact-based, and address real issues. The subgroup is interested in all types of jurisdiction-related factual experiences, not just those involving actual disputes/court cases. QUESTION 1 Has your business, your privacy or your ability to use or purchase domain name-related services been affected by ICANN's jurisdiction* in any way? If the answer is Yes, please describe specific cases, situations or incidents, including the date, the parties involved, and links to any relevant documents. Please note that “affected” may refer to positive and/or negative effects. QUESTION 2 Has ICANN's jurisdiction* affected any dispute resolution process or litigation related to domain names you have been involved in? If the answer is Yes, please describe specific cases, situations or incidents, including the date, the parties involved, and links to any relevant documents. Please note that “affected” may refer to positive and/or negative effects. QUESTION 3 Do you have copies of and/or links to any verifiable reports of experiences of other parties that would be responsive to the questions above? If the answer is yes, please provide these copies and/or links. Please provide either first-person accounts or reliable third-party accounts such as news reports; please do not provide your own version of events. ________________________________ [1]See CCWG-Accountability Main Report, paragraphs 6 and 234, and Annex 12, paragraphs 25-31. * For this Questionnaire, “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.
I support all the revisions to 1-3 and to the preamble that were proposed and gained support on the recent call. Essentially I support sending out the text Greg sent in his Jan 7 email unmodified. If we conclude that a questionnaire must go out then I support questions 1-3 as widely supported in the survey we did – with no question 4. MM: I agree with David here, although I would be happy if we simply detach Q4, work on it some more until it is acceptable, and send it out later. I note that all the discussion and disagreement about what to do next comes from Q4. Once again, it is holding us up. Let’s cut the Gordian knot and detach the 1-3 from it, please, and move on. Dr. Milton L Mueller Professor, School of Public Policy<http://spp.gatech.edu/> Georgia Institute of Technology Internet Governance Project http://internetgovernance.org/
Dear All With all due respect, I strongly oppose detaching questions 1-3 from Q 4. Either ALL 4Qs or nothing. Pls collaborate This is counterproductive that from the very begining few people oppose to Q4 Regards Kavouss 2017-01-09 17:56 GMT+01:00 Mueller, Milton L <milton@gatech.edu>:
I support all the revisions to 1-3 and to the preamble that were proposed and gained support on the recent call. Essentially I support sending out the text Greg sent in his Jan 7 email unmodified.
If we conclude that a questionnaire must go out then I support questions 1-3 as widely supported in the survey we did – with no question 4.
MM: I agree with David here, although I would be happy if we simply detach Q4, work on it some more until it is acceptable, and send it out later.
I note that all the discussion and disagreement about what to do next comes from Q4. Once again, it is holding us up. Let’s cut the Gordian knot and detach the 1-3 from it, please, and move on.
Dr. Milton L Mueller
Professor, School of Public Policy <http://spp.gatech.edu/>
Georgia Institute of Technology
Internet Governance Project
http://internetgovernance.org/
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
May I respectfully suggest that we are getting nowhere on this. We need to find a way forward or we will keep going around and around Many in the subgroup do not support sending out Question 4. We have articulated reasons for that on several occasions. I have considered carefully the arguments of those who do support sending out Question 4 and after thinking about it carefully, I cannot find a basis for agreeing to send out the question. My thoughts are captured by David McC’s post on why this is a rabbit hole I oppose starting down. Others in the group feel strongly that question 4 should go out. Some feel so strongly that they are of the view that it is all or nothing. While I don’t agree with them and while I certainly don’t agree with the idea that saying “all or nothing” is respectful of other people, I am not going to try any longer to change their minds. If all or nothing is the only choice available, I think the way forward is clear – let’s do nothing and shelve the idea of a questionnaire altogether. If anyone has concrete data to add (as Faranzeh did) they can do so as and when they wish. Paul Paul Rosenzweig <mailto:paul.rosenzweig@redbranchconsulting.com> paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 <http://www.redbranchconsulting.com/> www.redbranchconsulting.com My PGP Key: <https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684> https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684 From: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Kavouss Arasteh Sent: Monday, January 9, 2017 12:26 PM To: Mueller, Milton L <milton@gatech.edu>; Olga Cavalli <occ@mrecic.gov.ar>; María Milagros Castañon Seoane <mcastanon@rree.gob.pe>; Pedro Ivo Ferraz da Silva <pedro.ivo@itamaraty.gov.br>; Perez Galindo, Rafael <RPEREZGA@minetur.es>; DE SALINS Ghislain <ghislain.de-salins@finances.gouv.fr>; Manal Ismail <manal@tra.gov.eg>; Alice Munyua <alice@dotafrica.org>; GUO Feng <guofeng@caict.ac.cn> Cc: ws2-jurisdiction@icann.org Subject: Re: [Ws2-jurisdiction] Jurisdiction Questionnaire: RESPONSE REQUESTED Dear All With all due respect, I strongly oppose detaching questions 1-3 from Q 4. Either ALL 4Qs or nothing. Pls collaborate This is counterproductive that from the very begining few people oppose to Q4 Regards Kavouss 2017-01-09 17:56 GMT+01:00 Mueller, Milton L <milton@gatech.edu <mailto:milton@gatech.edu> >: I support all the revisions to 1-3 and to the preamble that were proposed and gained support on the recent call. Essentially I support sending out the text Greg sent in his Jan 7 email unmodified. If we conclude that a questionnaire must go out then I support questions 1-3 as widely supported in the survey we did – with no question 4. MM: I agree with David here, although I would be happy if we simply detach Q4, work on it some more until it is acceptable, and send it out later. I note that all the discussion and disagreement about what to do next comes from Q4. Once again, it is holding us up. Let’s cut the Gordian knot and detach the 1-3 from it, please, and move on. Dr. Milton L Mueller Professor, <http://spp.gatech.edu/> School of Public Policy Georgia Institute of Technology Internet Governance Project <http://internetgovernance.org/> http://internetgovernance.org/ _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
Paul Others in the group feel strongly that question 4 should go out. Some feel so strongly that they are of the view that it is all or nothing. While I don’t agree with them and while I certainly don’t agree with the idea that saying “all or nothing” is respectful of other people, I am not going to try any longer to change their minds. MM: Those who suggest that we should not send out a fact-finding missive at all because of Q4 also seem to be taking an “all or nothing approach” are they not? The reasonable solution, as I have said before, is to separate Q4 from the others and work on it some more to make it take a form that is acceptable to a broader range of WG participants.
I gather, however, that some disagree and say “all now or none ever.” If that is my choice I choose none. If the idea of separation gains any traction, I’d be open to consideration but I fear it would not bet any better definition later and we would just be kicking the can down the road. Paul Paul Rosenzweig <mailto:paul.rosenzweig@redbranchconsulting.com> paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 <http://www.redbranchconsulting.com/> www.redbranchconsulting.com My PGP Key: <https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684> https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684 From: Mueller, Milton L [mailto:milton@gatech.edu] Sent: Monday, January 9, 2017 2:28 PM To: Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com> Cc: ws2-jurisdiction@icann.org Subject: RE: [Ws2-jurisdiction] Jurisdiction Questionnaire: RESPONSE REQUESTED Paul Others in the group feel strongly that question 4 should go out. Some feel so strongly that they are of the view that it is all or nothing. While I don’t agree with them and while I certainly don’t agree with the idea that saying “all or nothing” is respectful of other people, I am not going to try any longer to change their minds. MM: Those who suggest that we should not send out a fact-finding missive at all because of Q4 also seem to be taking an “all or nothing approach” are they not? The reasonable solution, as I have said before, is to separate Q4 from the others and work on it some more to make it take a form that is acceptable to a broader range of WG participants.
Whatever the WG’s decision, I certainly hope we can decide this with finality on tomorrow’s call. Because right now we are like a car spinning its tires and just sinking deeper into the mud. We have already spent far too much time on this questionnaire matter. 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 Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey From: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Paul Rosenzweig Sent: Monday, January 09, 2017 3:02 PM To: 'Mueller, Milton L' Cc: ws2-jurisdiction@icann.org Subject: Re: [Ws2-jurisdiction] Jurisdiction Questionnaire: RESPONSE REQUESTED I gather, however, that some disagree and say “all now or none ever.” If that is my choice I choose none. If the idea of separation gains any traction, I’d be open to consideration but I fear it would not bet any better definition later and we would just be kicking the can down the road. Paul Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com> O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 www.redbranchconsulting.com<http://www.redbranchconsulting.com/> My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684 From: Mueller, Milton L [mailto:milton@gatech.edu] Sent: Monday, January 9, 2017 2:28 PM To: Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>> Cc: ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org> Subject: RE: [Ws2-jurisdiction] Jurisdiction Questionnaire: RESPONSE REQUESTED Paul Others in the group feel strongly that question 4 should go out. Some feel so strongly that they are of the view that it is all or nothing. While I don’t agree with them and while I certainly don’t agree with the idea that saying “all or nothing” is respectful of other people, I am not going to try any longer to change their minds. MM: Those who suggest that we should not send out a fact-finding missive at all because of Q4 also seem to be taking an “all or nothing approach” are they not? The reasonable solution, as I have said before, is to separate Q4 from the others and work on it some more to make it take a form that is acceptable to a broader range of WG participants. ________________________________ No virus found in this message. Checked by AVG - www.avg.com<http://www.avg.com/email-signature> Version: 2016.0.7996 / Virus Database: 4749/13706 - Release Date: 01/04/17
What time is the call tomorrow? I apologize, but I lost track of our scheduling decisions. Paul Paul Rosenzweig <mailto:paul.rosenzweig@redbranchconsulting.com> paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 <http://www.redbranchconsulting.com/> www.redbranchconsulting.com My PGP Key: <https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684> https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684 From: Phil Corwin [mailto:psc@vlaw-dc.com] Sent: Monday, January 9, 2017 3:16 PM To: Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com>; 'Mueller, Milton L' <milton@gatech.edu> Cc: ws2-jurisdiction@icann.org Subject: RE: [Ws2-jurisdiction] Jurisdiction Questionnaire: RESPONSE REQUESTED Whatever the WG’s decision, I certainly hope we can decide this with finality on tomorrow’s call. Because right now we are like a car spinning its tires and just sinking deeper into the mud. We have already spent far too much time on this questionnaire matter. 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 Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey From: ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Paul Rosenzweig Sent: Monday, January 09, 2017 3:02 PM To: 'Mueller, Milton L' Cc: ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> Subject: Re: [Ws2-jurisdiction] Jurisdiction Questionnaire: RESPONSE REQUESTED I gather, however, that some disagree and say “all now or none ever.” If that is my choice I choose none. If the idea of separation gains any traction, I’d be open to consideration but I fear it would not bet any better definition later and we would just be kicking the can down the road. Paul Paul Rosenzweig <mailto:paul.rosenzweig@redbranchconsulting.com> paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 <http://www.redbranchconsulting.com/> www.redbranchconsulting.com My PGP Key: <https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684> https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684 From: Mueller, Milton L [mailto:milton@gatech.edu] Sent: Monday, January 9, 2017 2:28 PM To: Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com> > Cc: ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> Subject: RE: [Ws2-jurisdiction] Jurisdiction Questionnaire: RESPONSE REQUESTED Paul Others in the group feel strongly that question 4 should go out. Some feel so strongly that they are of the view that it is all or nothing. While I don’t agree with them and while I certainly don’t agree with the idea that saying “all or nothing” is respectful of other people, I am not going to try any longer to change their minds. MM: Those who suggest that we should not send out a fact-finding missive at all because of Q4 also seem to be taking an “all or nothing approach” are they not? The reasonable solution, as I have said before, is to separate Q4 from the others and work on it some more to make it take a form that is acceptable to a broader range of WG participants. _____ No virus found in this message. Checked by AVG - www.avg.com <http://www.avg.com/email-signature> Version: 2016.0.7996 / Virus Database: 4749/13706 - Release Date: 01/04/17
Hello all, In reply to Paul Rosenzweig, the Jurisdiction meeting on Tuesday, 10 January is at 13:00 UTC. With kind regards, Brenda Brewer, Projects & Operations Assistant Multistakeholder Strategy & Strategic Initiatives (MSSI) Internet Corporation for Assigned Names and Numbers (ICANN) From: <ws2-jurisdiction-bounces@icann.org> on behalf of Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com> Date: Monday, January 9, 2017 at 2:46 PM To: 'Phil Corwin' <psc@vlaw-dc.com>, "'Mueller, Milton L'" <milton@gatech.edu> Cc: "ws2-jurisdiction-bounces@icann.org" <ws2-jurisdiction@icann.org> Subject: Re: [Ws2-jurisdiction] Jurisdiction Questionnaire: RESPONSE REQUESTED What time is the call tomorrow? I apologize, but I lost track of our scheduling decisions. Paul Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com> O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 www.redbranchconsulting.com[redbranchconsulting.com]<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting....> My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684[keys.mailvelope.com]<https://urldefense.proofpoint.com/v2/url?u=https-3A__keys.mailvelope.com_pks_lookup-3Fop-3Dget-26search-3D0x9A830097CA066684&d=DgMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=kbiQDH54980u4nTPfwdloDLY6-6F24x0ArAvhdeDvvc&m=nfCiwapWoYHvCLBz3QwPV-Y_rEkBKbBcjkF01YjHIU4&s=o6SpWL_y9zYaTmi-HIsDy5L4-EavY5iLy3Wj1r03U6M&e=> From: Phil Corwin [mailto:psc@vlaw-dc.com] Sent: Monday, January 9, 2017 3:16 PM To: Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com>; 'Mueller, Milton L' <milton@gatech.edu> Cc: ws2-jurisdiction@icann.org Subject: RE: [Ws2-jurisdiction] Jurisdiction Questionnaire: RESPONSE REQUESTED Whatever the WG’s decision, I certainly hope we can decide this with finality on tomorrow’s call. Because right now we are like a car spinning its tires and just sinking deeper into the mud. We have already spent far too much time on this questionnaire matter. 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 Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey From: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Paul Rosenzweig Sent: Monday, January 09, 2017 3:02 PM To: 'Mueller, Milton L' Cc: ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org> Subject: Re: [Ws2-jurisdiction] Jurisdiction Questionnaire: RESPONSE REQUESTED I gather, however, that some disagree and say “all now or none ever.” If that is my choice I choose none. If the idea of separation gains any traction, I’d be open to consideration but I fear it would not bet any better definition later and we would just be kicking the can down the road. Paul Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com> O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 www.redbranchconsulting.com[redbranchconsulting.com]<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting....> My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684[keys.mailvelope.com]<https://urldefense.proofpoint.com/v2/url?u=https-3A__keys.mailvelope.com_pks_lookup-3Fop-3Dget-26search-3D0x9A830097CA066684&d=DgMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=kbiQDH54980u4nTPfwdloDLY6-6F24x0ArAvhdeDvvc&m=nfCiwapWoYHvCLBz3QwPV-Y_rEkBKbBcjkF01YjHIU4&s=o6SpWL_y9zYaTmi-HIsDy5L4-EavY5iLy3Wj1r03U6M&e=> From: Mueller, Milton L [mailto:milton@gatech.edu] Sent: Monday, January 9, 2017 2:28 PM To: Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>> Cc: ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org> Subject: RE: [Ws2-jurisdiction] Jurisdiction Questionnaire: RESPONSE REQUESTED Paul Others in the group feel strongly that question 4 should go out. Some feel so strongly that they are of the view that it is all or nothing. While I don’t agree with them and while I certainly don’t agree with the idea that saying “all or nothing” is respectful of other people, I am not going to try any longer to change their minds. MM: Those who suggest that we should not send out a fact-finding missive at all because of Q4 also seem to be taking an “all or nothing approach” are they not? The reasonable solution, as I have said before, is to separate Q4 from the others and work on it some more to make it take a form that is acceptable to a broader range of WG participants. ________________________________ No virus found in this message. Checked by AVG - www.avg.com[avg.com]<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.avg.com_email-2Dsign...> Version: 2016.0.7996 / Virus Database: 4749/13706 - Release Date: 01/04/17
Seeing some support for David McAuley's suggestion for Question 4 and some support for Alternative 1, I wonder if a combination of the two might be able to gain consensus support. Below (and attached in redline) is my suggested combination: Are you aware of any material, documented instance(s) where ICANN has been unable to pursue the actual operation of its policies and accountability mechanisms because of ICANN’s jurisdiction? If so, please provide documentation, including specific examples and references to specific laws. Are you aware of and able to document the existence of an alternative jurisdiction where ICANN would not be so prevented from pursuing the actual operation of ICANN’s policies and accountability mechanisms? If so, please provide documentation, including specific examples, references to specific laws, case studies, other studies, and analysis. I look forward to discussion of this and the other alternatives regarding Question 4 on our call tomorrow, and before that, on this list. Greg On Mon, Jan 9, 2017 at 3:52 PM, MSSI Secretariat <mssi-secretariat@icann.org
wrote:
Hello all,
In reply to Paul Rosenzweig, the Jurisdiction meeting on Tuesday, 10 January is at 13:00 UTC.
With kind regards,
*Brenda Brewer, Projects & Operations Assistant *
Multistakeholder Strategy & Strategic Initiatives (MSSI)
Internet Corporation for Assigned Names and Numbers (ICANN)
*From: *<ws2-jurisdiction-bounces@icann.org> on behalf of Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com> *Date: *Monday, January 9, 2017 at 2:46 PM *To: *'Phil Corwin' <psc@vlaw-dc.com>, "'Mueller, Milton L'" < milton@gatech.edu> *Cc: *"ws2-jurisdiction-bounces@icann.org" <ws2-jurisdiction@icann.org> *Subject: *Re: [Ws2-jurisdiction] Jurisdiction Questionnaire: RESPONSE REQUESTED
What time is the call tomorrow? I apologize, but I lost track of our scheduling decisions.
Paul
Paul Rosenzweig
paul.rosenzweig@redbranchconsulting.com
O: +1 (202) 547-0660 <(202)%20547-0660>
M: +1 (202) 329-9650 <(202)%20329-9650>
VOIP: +1 (202) 738-1739 <(202)%20738-1739>
www.redbranchconsulting.com[redbranchconsulting.com] <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting....>
My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search= 0x9A830097CA066684[keys.mailvelope.com] <https://urldefense.proofpoint.com/v2/url?u=https-3A__keys.mailvelope.com_pks...>
*From:* Phil Corwin [mailto:psc@vlaw-dc.com] *Sent:* Monday, January 9, 2017 3:16 PM *To:* Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com>; 'Mueller, Milton L' <milton@gatech.edu> *Cc:* ws2-jurisdiction@icann.org *Subject:* RE: [Ws2-jurisdiction] Jurisdiction Questionnaire: RESPONSE REQUESTED
Whatever the WG’s decision, I certainly hope we can decide this with finality on tomorrow’s call. Because right now we are like a car spinning its tires and just sinking deeper into the mud. We have already spent far too much time on this questionnaire matter.
*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*
*Twitter: @VlawDC*
*"Luck is the residue of design" -- Branch Rickey*
*From:* ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction- bounces@icann.org <ws2-jurisdiction-bounces@icann.org>] *On Behalf Of *Paul Rosenzweig *Sent:* Monday, January 09, 2017 3:02 PM *To:* 'Mueller, Milton L' *Cc:* ws2-jurisdiction@icann.org *Subject:* Re: [Ws2-jurisdiction] Jurisdiction Questionnaire: RESPONSE REQUESTED
I gather, however, that some disagree and say “all now or none ever.” If that is my choice I choose none. If the idea of separation gains any traction, I’d be open to consideration but I fear it would not bet any better definition later and we would just be kicking the can down the road.
Paul
Paul Rosenzweig
paul.rosenzweig@redbranchconsulting.com
O: +1 (202) 547-0660 <(202)%20547-0660>
M: +1 (202) 329-9650 <(202)%20329-9650>
VOIP: +1 (202) 738-1739 <(202)%20738-1739>
www.redbranchconsulting.com[redbranchconsulting.com] <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting....>
My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search= 0x9A830097CA066684[keys.mailvelope.com] <https://urldefense.proofpoint.com/v2/url?u=https-3A__keys.mailvelope.com_pks...>
*From:* Mueller, Milton L [mailto:milton@gatech.edu <milton@gatech.edu>] *Sent:* Monday, January 9, 2017 2:28 PM *To:* Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com> *Cc:* ws2-jurisdiction@icann.org *Subject:* RE: [Ws2-jurisdiction] Jurisdiction Questionnaire: RESPONSE REQUESTED
Paul
Others in the group feel strongly that question 4 should go out. Some feel so strongly that they are of the view that it is all or nothing. While I don’t agree with them and while I certainly don’t agree with the idea that saying “all or nothing” is respectful of other people, I am not going to try any longer to change their minds.
MM: Those who suggest that we should not send out a fact-finding missive at all because of Q4 also seem to be taking an “all or nothing approach” are they not?
The reasonable solution, as I have said before, is to separate Q4 from the others and work on it some more to make it take a form that is acceptable to a broader range of WG participants.
------------------------------
No virus found in this message. Checked by AVG - www.avg.com[avg.com] <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.avg.com_email-2Dsign...> Version: 2016.0.7996 / Virus Database: 4749/13706 - Release Date: 01/04/17
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
I’m fine with this though I’d tweak the language to make the two halves of the proposed Q4 as symmetric as possible. Best regards, John Laprise, Ph.D. Consulting Scholar <http://www.linkedin.com/in/jplaprise/> http://www.linkedin.com/in/jplaprise/ From: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Greg Shatan Sent: Monday, January 9, 2017 5:52 PM To: MSSI Secretariat <mssi-secretariat@icann.org> Cc: ws2-jurisdiction@icann.org Subject: Re: [Ws2-jurisdiction] Jurisdiction Questionnaire: RESPONSE REQUESTED Seeing some support for David McAuley's suggestion for Question 4 and some support for Alternative 1, I wonder if a combination of the two might be able to gain consensus support. Below (and attached in redline) is my suggested combination: Are you aware of any material, documented instance(s) where ICANN has been unable to pursue the actual operation of its policies and accountability mechanisms because of ICANN’s jurisdiction? If so, please provide documentation, including specific examples and references to specific laws. Are you aware of and able to document the existence of an alternative jurisdiction where ICANN would not be so prevented from pursuing the actual operation of ICANN’s policies and accountability mechanisms? If so, please provide documentation, including specific examples, references to specific laws, case studies, other studies, and analysis. I look forward to discussion of this and the other alternatives regarding Question 4 on our call tomorrow, and before that, on this list. Greg On Mon, Jan 9, 2017 at 3:52 PM, MSSI Secretariat <mssi-secretariat@icann.org <mailto:mssi-secretariat@icann.org> > wrote: Hello all, In reply to Paul Rosenzweig, the Jurisdiction meeting on Tuesday, 10 January is at 13:00 UTC. With kind regards, Brenda Brewer, Projects & Operations Assistant Multistakeholder Strategy & Strategic Initiatives (MSSI) Internet Corporation for Assigned Names and Numbers (ICANN) From: <ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> > on behalf of Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com> > Date: Monday, January 9, 2017 at 2:46 PM To: 'Phil Corwin' <psc@vlaw-dc.com <mailto:psc@vlaw-dc.com> >, "'Mueller, Milton L'" <milton@gatech.edu <mailto:milton@gatech.edu> > Cc: "ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> " <ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> > Subject: Re: [Ws2-jurisdiction] Jurisdiction Questionnaire: RESPONSE REQUESTED What time is the call tomorrow? I apologize, but I lost track of our scheduling decisions. Paul Paul Rosenzweig <mailto:paul.rosenzweig@redbranchconsulting.com> paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 <tel:(202)%20547-0660> M: +1 (202) 329-9650 <tel:(202)%20329-9650> VOIP: +1 (202) 738-1739 <tel:(202)%20738-1739> <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting....> www.redbranchconsulting.com[redbranchconsulting.com] My PGP Key: <https://urldefense.proofpoint.com/v2/url?u=https-3A__keys.mailvelope.com_pks...> https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684[keys.mailvelope.com] From: Phil Corwin [mailto:psc@vlaw-dc.com <mailto:psc@vlaw-dc.com> ] Sent: Monday, January 9, 2017 3:16 PM To: Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com> >; 'Mueller, Milton L' <milton@gatech.edu <mailto:milton@gatech.edu> > Cc: ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> Subject: RE: [Ws2-jurisdiction] Jurisdiction Questionnaire: RESPONSE REQUESTED Whatever the WG’s decision, I certainly hope we can decide this with finality on tomorrow’s call. Because right now we are like a car spinning its tires and just sinking deeper into the mud. We have already spent far too much time on this questionnaire matter. Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597 <tel:(202)%20559-8597> /Direct 202-559-8750 <tel:(202)%20559-8750> /Fax 202-255-6172 <tel:(202)%20255-6172> /Cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey From: ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Paul Rosenzweig Sent: Monday, January 09, 2017 3:02 PM To: 'Mueller, Milton L' Cc: ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> Subject: Re: [Ws2-jurisdiction] Jurisdiction Questionnaire: RESPONSE REQUESTED I gather, however, that some disagree and say “all now or none ever.” If that is my choice I choose none. If the idea of separation gains any traction, I’d be open to consideration but I fear it would not bet any better definition later and we would just be kicking the can down the road. Paul Paul Rosenzweig <mailto:paul.rosenzweig@redbranchconsulting.com> paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 <tel:(202)%20547-0660> M: +1 (202) 329-9650 <tel:(202)%20329-9650> VOIP: +1 (202) 738-1739 <tel:(202)%20738-1739> <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting....> www.redbranchconsulting.com[redbranchconsulting.com] My PGP Key: <https://urldefense.proofpoint.com/v2/url?u=https-3A__keys.mailvelope.com_pks...> https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684[keys.mailvelope.com] From: Mueller, Milton L [mailto:milton@gatech.edu] Sent: Monday, January 9, 2017 2:28 PM To: Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com> > Cc: ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> Subject: RE: [Ws2-jurisdiction] Jurisdiction Questionnaire: RESPONSE REQUESTED Paul Others in the group feel strongly that question 4 should go out. Some feel so strongly that they are of the view that it is all or nothing. While I don’t agree with them and while I certainly don’t agree with the idea that saying “all or nothing” is respectful of other people, I am not going to try any longer to change their minds. MM: Those who suggest that we should not send out a fact-finding missive at all because of Q4 also seem to be taking an “all or nothing approach” are they not? The reasonable solution, as I have said before, is to separate Q4 from the others and work on it some more to make it take a form that is acceptable to a broader range of WG participants. _____ No virus found in this message. 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On Tuesday 10 January 2017 05:21 AM, Greg Shatan wrote:
Seeing some support for David McAuley's suggestion for Question 4 and some support for Alternative 1, I wonder if a combination of the two might be able to gain consensus support. Below (and attached in redline) is my suggested combination:
Are you aware of any material, documented instance(s) where ICANN has been unable to pursue the actual operation of its policies and accountability mechanisms because of ICANN’s jurisdiction? If so, please provide documentation, including specific examples and references to specific laws.
There has been no response to my query as to why such a condition of listing documented instances where ICANN has been unable to pursue its policies because of NTIA oversight was not applied before seeking and finalising exit from NTIA oversight. Neither documented proof of existing alternative accountability mechanism was sought. Presenting these conditions now simply amounts to obstructing a proper inquiry into all aspects of ICANN's jurisdiction, as was agreed. I dont agree to sending out Q1-3 in absence of Q4 because that is making a judgement on the mandate of this group, a judgement that I do not agree with. parminder
Are you aware of and able to document the existence of an alternative jurisdiction where ICANN would not be so prevented from pursuing the actual operation of ICANN’s policies and accountability mechanisms? If so, please provide documentation, including specific examples, references to specific laws, case studies, other studies, and analysis.
I look forward to discussion of this and the other alternatives regarding Question 4 on our call tomorrow, and before that, on this list.
Greg
On Mon, Jan 9, 2017 at 3:52 PM, MSSI Secretariat <mssi-secretariat@icann.org <mailto:mssi-secretariat@icann.org>> wrote:
Hello all,
In reply to Paul Rosenzweig, the Jurisdiction meeting on Tuesday, 10 January is at 13:00 UTC.
With kind regards,
/Brenda Brewer, Projects & Operations Assistant /
Multistakeholder Strategy & Strategic Initiatives (MSSI)
Internet Corporation for Assigned Names and Numbers (ICANN)
*From: *<ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org>> on behalf of Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com>> *Date: *Monday, January 9, 2017 at 2:46 PM *To: *'Phil Corwin' <psc@vlaw-dc.com <mailto:psc@vlaw-dc.com>>, "'Mueller, Milton L'" <milton@gatech.edu <mailto:milton@gatech.edu>> *Cc: *"ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org>" <ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org>> *Subject: *Re: [Ws2-jurisdiction] Jurisdiction Questionnaire: RESPONSE REQUESTED
What time is the call tomorrow? I apologize, but I lost track of our scheduling decisions.
Paul
Paul Rosenzweig
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*From:*Phil Corwin [mailto:psc@vlaw-dc.com <mailto:psc@vlaw-dc.com>] *Sent:* Monday, January 9, 2017 3:16 PM *To:* Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com>>; 'Mueller, Milton L' <milton@gatech.edu <mailto:milton@gatech.edu>> *Cc:* ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> *Subject:* RE: [Ws2-jurisdiction] Jurisdiction Questionnaire: RESPONSE REQUESTED
Whatever the WG’s decision, I certainly hope we can decide this with finality on tomorrow’s call. Because right now we are like a car spinning its tires and just sinking deeper into the mud. We have already spent far too much time on this questionnaire matter.
*Philip S. Corwin, Founding Principal*
*Virtualaw LLC*
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*From:*ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org>] *On Behalf Of *Paul Rosenzweig *Sent:* Monday, January 09, 2017 3:02 PM *To:* 'Mueller, Milton L' *Cc:* ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> *Subject:* Re: [Ws2-jurisdiction] Jurisdiction Questionnaire: RESPONSE REQUESTED
I gather, however, that some disagree and say “all now or none ever.” If that is my choice I choose none. If the idea of separation gains any traction, I’d be open to consideration but I fear it would not bet any better definition later and we would just be kicking the can down the road.
Paul
Paul Rosenzweig
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*From:*Mueller, Milton L [mailto:milton@gatech.edu] *Sent:* Monday, January 9, 2017 2:28 PM *To:* Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com>> *Cc:* ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> *Subject:* RE: [Ws2-jurisdiction] Jurisdiction Questionnaire: RESPONSE REQUESTED
Paul
Others in the group feel strongly that question 4 should go out. Some feel so strongly that they are of the view that it is all or nothing. While I don’t agree with them and while I certainly don’t agree with the idea that saying “all or nothing” is respectful of other people, I am not going to try any longer to change their minds.
MM: Those who suggest that we should not send out a fact-finding missive at all because of Q4 also seem to be taking an “all or nothing approach” are they not?
The reasonable solution, as I have said before, is to separate Q4 from the others and work on it some more to make it take a form that is acceptable to a broader range of WG participants.
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Because if we are looking to improve the status quo, I'd like to see examples and evidence of what we're seeking to avoid in seeking a different jurisdiction and look at how said jurisdiction would address the cited problem. It's not obstruction. If the claim is for a "better" jurisdiction, I want to know what, materially constitutes as better. On Mon, Jan 9, 2017, 11:35 PM parminder <parminder@itforchange.net> wrote:
On Tuesday 10 January 2017 05:21 AM, Greg Shatan wrote:
Seeing some support for David McAuley's suggestion for Question 4 and some support for Alternative 1, I wonder if a combination of the two might be able to gain consensus support. Below (and attached in redline) is my suggested combination:
Are you aware of any material, documented instance(s) where ICANN has been unable to pursue the actual operation of its policies and accountability mechanisms because of ICANN’s jurisdiction? If so, please provide documentation, including specific examples and references to specific laws.
There has been no response to my query as to why such a condition of listing documented instances where ICANN has been unable to pursue its policies because of NTIA oversight was not applied before seeking and finalising exit from NTIA oversight. Neither documented proof of existing alternative accountability mechanism was sought.
Presenting these conditions now simply amounts to obstructing a proper inquiry into all aspects of ICANN's jurisdiction, as was agreed.
I dont agree to sending out Q1-3 in absence of Q4 because that is making a judgement on the mandate of this group, a judgement that I do not agree with.
parminder
Are you aware of and able to document the existence of an alternative jurisdiction where ICANN would not be so prevented from pursuing the actual operation of ICANN’s policies and accountability mechanisms? If so, please provide documentation, including specific examples, references to specific laws, case studies, other studies, and analysis.
I look forward to discussion of this and the other alternatives regarding Question 4 on our call tomorrow, and before that, on this list.
Greg
On Mon, Jan 9, 2017 at 3:52 PM, MSSI Secretariat < mssi-secretariat@icann.org> wrote:
Hello all,
In reply to Paul Rosenzweig, the Jurisdiction meeting on Tuesday, 10 January is at 13:00 UTC.
With kind regards,
*Brenda Brewer, Projects & Operations Assistant *
Multistakeholder Strategy & Strategic Initiatives (MSSI)
Internet Corporation for Assigned Names and Numbers (ICANN)
*From: *<ws2-jurisdiction-bounces@icann.org> on behalf of Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com> *Date: *Monday, January 9, 2017 at 2:46 PM *To: *'Phil Corwin' <psc@vlaw-dc.com>, "'Mueller, Milton L'" < milton@gatech.edu> *Cc: *"ws2-jurisdiction-bounces@icann.org" <ws2-jurisdiction@icann.org> *Subject: *Re: [Ws2-jurisdiction] Jurisdiction Questionnaire: RESPONSE REQUESTED
What time is the call tomorrow? I apologize, but I lost track of our scheduling decisions.
Paul
Paul Rosenzweig
paul.rosenzweig@redbranchconsulting.com
O: +1 (202) 547-0660 <%28202%29%20547-0660>
M: +1 (202) 329-9650 <%28202%29%20329-9650>
VOIP: +1 (202) 738-1739 <%28202%29%20738-1739>
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*From:* Phil Corwin [mailto:psc@vlaw-dc.com] *Sent:* Monday, January 9, 2017 3:16 PM *To:* Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com>; 'Mueller, Milton L' <milton@gatech.edu> *Cc:* ws2-jurisdiction@icann.org *Subject:* RE: [Ws2-jurisdiction] Jurisdiction Questionnaire: RESPONSE REQUESTED
Whatever the WG’s decision, I certainly hope we can decide this with finality on tomorrow’s call. Because right now we are like a car spinning its tires and just sinking deeper into the mud. We have already spent far too much time on this questionnaire matter.
*Philip S. Corwin, Founding Principal*
*Virtualaw LLC*
*1155 F Street, NW*
*Suite 1050*
*Washington, DC 20004*
*202-559-8597 <%28202%29%20559-8597>/Direct*
*202-559-8750 <%28202%29%20559-8750>/Fax*
*202-255-6172 <%28202%29%20255-6172>/Cell*
*Twitter: @VlawDC*
*"Luck is the residue of design" -- Branch Rickey*
*From:* ws2-jurisdiction-bounces@icann.org [ mailto:ws2-jurisdiction-bounces@icann.org <ws2-jurisdiction-bounces@icann.org>] *On Behalf Of *Paul Rosenzweig *Sent:* Monday, January 09, 2017 3:02 PM *To:* 'Mueller, Milton L' *Cc:* ws2-jurisdiction@icann.org *Subject:* Re: [Ws2-jurisdiction] Jurisdiction Questionnaire: RESPONSE REQUESTED
I gather, however, that some disagree and say “all now or none ever.” If that is my choice I choose none. If the idea of separation gains any traction, I’d be open to consideration but I fear it would not bet any better definition later and we would just be kicking the can down the road.
Paul
Paul Rosenzweig
paul.rosenzweig@redbranchconsulting.com
O: +1 (202) 547-0660 <%28202%29%20547-0660>
M: +1 (202) 329-9650 <%28202%29%20329-9650>
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My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684 [keys.mailvelope.com] <https://urldefense.proofpoint.com/v2/url?u=https-3A__keys.mailvelope.com_pks...>
*From:* Mueller, Milton L [mailto:milton@gatech.edu <milton@gatech.edu>] *Sent:* Monday, January 9, 2017 2:28 PM *To:* Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com> *Cc:* ws2-jurisdiction@icann.org *Subject:* RE: [Ws2-jurisdiction] Jurisdiction Questionnaire: RESPONSE REQUESTED
Paul
Others in the group feel strongly that question 4 should go out. Some feel so strongly that they are of the view that it is all or nothing. While I don’t agree with them and while I certainly don’t agree with the idea that saying “all or nothing” is respectful of other people, I am not going to try any longer to change their minds.
MM: Those who suggest that we should not send out a fact-finding missive at all because of Q4 also seem to be taking an “all or nothing approach” are they not?
The reasonable solution, as I have said before, is to separate Q4 from the others and work on it some more to make it take a form that is acceptable to a broader range of WG participants.
------------------------------
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On Tuesday 10 January 2017 11:16 AM, John Laprise wrote:
Because if we are looking to improve the status quo, I'd like to see examples and evidence of what we're seeking to avoid in seeking a different jurisdiction and look at how said jurisdiction would address the cited problem.
Exit from NTIA oversight was also an improvement over the status quo -- why these criteria did not apply then ? The I* community asked for globalisation of ICANN without seeing these examples and evidences, following it up by the Netmundial conference. (Apart from the WSIS having done so much earlier.) Even during the transition process, no one asked for these evidences that justify change! For many of us, examining the US jurisdictional oversight issue is simply completing the task of ICANN's globalisation.
It's not obstruction. If the claim is for a "better" jurisdiction, I want to know what, materially constitutes as better.
Sure, but can you all be so good as to allow people, outside these hallowed circles, to tell what they tell in their own words, rather than 'say this but not this, dont go here...' . That is an insult to public consultation, much less participation. parminder
On Mon, Jan 9, 2017, 11:35 PM parminder <parminder@itforchange.net <mailto:parminder@itforchange.net>> wrote:
On Tuesday 10 January 2017 05:21 AM, Greg Shatan wrote:
Seeing some support for David McAuley's suggestion for Question 4 and some support for Alternative 1, I wonder if a combination of the two might be able to gain consensus support. Below (and attached in redline) is my suggested combination:
Are you aware of any material, documented instance(s) where ICANN has been unable to pursue the actual operation of its policies and accountability mechanisms because of ICANN’s jurisdiction? If so, please provide documentation, including specific examples and references to specific laws.
There has been no response to my query as to why such a condition of listing documented instances where ICANN has been unable to pursue its policies because of NTIA oversight was not applied before seeking and finalising exit from NTIA oversight. Neither documented proof of existing alternative accountability mechanism was sought.
Presenting these conditions now simply amounts to obstructing a proper inquiry into all aspects of ICANN's jurisdiction, as was agreed.
I dont agree to sending out Q1-3 in absence of Q4 because that is making a judgement on the mandate of this group, a judgement that I do not agree with.
parminder
Are you aware of and able to document the existence of an alternative jurisdiction where ICANN would not be so prevented from pursuing the actual operation of ICANN’s policies and accountability mechanisms? If so, please provide documentation, including specific examples, references to specific laws, case studies, other studies, and analysis.
I look forward to discussion of this and the other alternatives regarding Question 4 on our call tomorrow, and before that, on this list.
Greg
On Mon, Jan 9, 2017 at 3:52 PM, MSSI Secretariat <mssi-secretariat@icann.org <mailto:mssi-secretariat@icann.org>> wrote:
Hello all,
In reply to Paul Rosenzweig, the Jurisdiction meeting on Tuesday, 10 January is at 13:00 UTC.
With kind regards,
/Brenda Brewer, Projects & Operations Assistant /
Multistakeholder Strategy & Strategic Initiatives (MSSI)
Internet Corporation for Assigned Names and Numbers (ICANN)
*From: *<ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org>> on behalf of Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com>> *Date: *Monday, January 9, 2017 at 2:46 PM *To: *'Phil Corwin' <psc@vlaw-dc.com <mailto:psc@vlaw-dc.com>>, "'Mueller, Milton L'" <milton@gatech.edu <mailto:milton@gatech.edu>> *Cc: *"ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org>" <ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org>> *Subject: *Re: [Ws2-jurisdiction] Jurisdiction Questionnaire: RESPONSE REQUESTED
What time is the call tomorrow? I apologize, but I lost track of our scheduling decisions.
Paul
Paul Rosenzweig
paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com>
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*From:*Phil Corwin [mailto:psc@vlaw-dc.com <mailto:psc@vlaw-dc.com>] *Sent:* Monday, January 9, 2017 3:16 PM *To:* Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com>>; 'Mueller, Milton L' <milton@gatech.edu <mailto:milton@gatech.edu>> *Cc:* ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> *Subject:* RE: [Ws2-jurisdiction] Jurisdiction Questionnaire: RESPONSE REQUESTED
Whatever the WG’s decision, I certainly hope we can decide this with finality on tomorrow’s call. Because right now we are like a car spinning its tires and just sinking deeper into the mud. We have already spent far too much time on this questionnaire matter.
*Philip S. Corwin, Founding Principal*
*Virtualaw LLC*
*1155 F Street, NW*
*Suite 1050*
*Washington, DC 20004*
*202-559-8597 <tel:%28202%29%20559-8597>/Direct*
*202-559-8750 <tel:%28202%29%20559-8750>/Fax*
*202-255-6172 <tel:%28202%29%20255-6172>/Cell*
* *
*Twitter: @VlawDC*
*/"Luck is the residue of design" -- Branch Rickey/*
*From:*ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] *On Behalf Of *Paul Rosenzweig *Sent:* Monday, January 09, 2017 3:02 PM *To:* 'Mueller, Milton L' *Cc:* ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> *Subject:* Re: [Ws2-jurisdiction] Jurisdiction Questionnaire: RESPONSE REQUESTED
I gather, however, that some disagree and say “all now or none ever.” If that is my choice I choose none. If the idea of separation gains any traction, I’d be open to consideration but I fear it would not bet any better definition later and we would just be kicking the can down the road.
Paul
Paul Rosenzweig
paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com>
O: +1 (202) 547-0660 <tel:%28202%29%20547-0660>
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*From:*Mueller, Milton L [mailto:milton@gatech.edu] *Sent:* Monday, January 9, 2017 2:28 PM *To:* Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com>> *Cc:* ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> *Subject:* RE: [Ws2-jurisdiction] Jurisdiction Questionnaire: RESPONSE REQUESTED
Paul
Others in the group feel strongly that question 4 should go out. Some feel so strongly that they are of the view that it is all or nothing. While I don’t agree with them and while I certainly don’t agree with the idea that saying “all or nothing” is respectful of other people, I am not going to try any longer to change their minds.
MM: Those who suggest that we should not send out a fact-finding missive at all because of Q4 also seem to be taking an “all or nothing approach” are they not?
The reasonable solution, as I have said before, is to separate Q4 from the others and work on it some more to make it take a form that is acceptable to a broader range of WG participants.
------------------------------------------------------------------------
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The difference is that we are not now under NTIA oversight. We are the captains of out destiny, as it were. Doesn't examining US jurisdictional oversight include pros and cons? Seriously? Allow? ICANN provides and allows ample opportunity for "people outside these hallowed circles" to say what they want. Participating here, at meetings, online, etc cetera. There is so much opportunity for public consultation that new participants find themselves at a loss when trying to find a place for their comments. That this group wants specific answers to a question on a survey is hardly the insult to public consultation/participation you claim it to be. On Mon, Jan 9, 2017, 11:56 PM parminder <parminder@itforchange.net> wrote: On Tuesday 10 January 2017 11:16 AM, John Laprise wrote: Because if we are looking to improve the status quo, I'd like to see examples and evidence of what we're seeking to avoid in seeking a different jurisdiction and look at how said jurisdiction would address the cited problem. Exit from NTIA oversight was also an improvement over the status quo -- why these criteria did not apply then ? The I* community asked for globalisation of ICANN without seeing these examples and evidences, following it up by the Netmundial conference. (Apart from the WSIS having done so much earlier.) Even during the transition process, no one asked for these evidences that justify change! For many of us, examining the US jurisdictional oversight issue is simply completing the task of ICANN's globalisation. It's not obstruction. If the claim is for a "better" jurisdiction, I want to know what, materially constitutes as better. Sure, but can you all be so good as to allow people, outside these hallowed circles, to tell what they tell in their own words, rather than 'say this but not this, dont go here...' . That is an insult to public consultation, much less participation. parminder On Mon, Jan 9, 2017, 11:35 PM parminder < <parminder@itforchange.net> parminder@itforchange.net> wrote: On Tuesday 10 January 2017 05:21 AM, Greg Shatan wrote: Seeing some support for David McAuley's suggestion for Question 4 and some support for Alternative 1, I wonder if a combination of the two might be able to gain consensus support. Below (and attached in redline) is my suggested combination: Are you aware of any material, documented instance(s) where ICANN has been unable to pursue the actual operation of its policies and accountability mechanisms because of ICANN’s jurisdiction? If so, please provide documentation, including specific examples and references to specific laws. There has been no response to my query as to why such a condition of listing documented instances where ICANN has been unable to pursue its policies because of NTIA oversight was not applied before seeking and finalising exit from NTIA oversight. Neither documented proof of existing alternative accountability mechanism was sought. Presenting these conditions now simply amounts to obstructing a proper inquiry into all aspects of ICANN's jurisdiction, as was agreed. I dont agree to sending out Q1-3 in absence of Q4 because that is making a judgement on the mandate of this group, a judgement that I do not agree with. parminder Are you aware of and able to document the existence of an alternative jurisdiction where ICANN would not be so prevented from pursuing the actual operation of ICANN’s policies and accountability mechanisms? If so, please provide documentation, including specific examples, references to specific laws, case studies, other studies, and analysis. I look forward to discussion of this and the other alternatives regarding Question 4 on our call tomorrow, and before that, on this list. Greg On Mon, Jan 9, 2017 at 3:52 PM, MSSI Secretariat <mssi-secretariat@icann.org
wrote:
Hello all, In reply to Paul Rosenzweig, the Jurisdiction meeting on Tuesday, 10 January is at 13:00 UTC. With kind regards, *Brenda Brewer, Projects & Operations Assistant * Multistakeholder Strategy & Strategic Initiatives (MSSI) Internet Corporation for Assigned Names and Numbers (ICANN) *From: *< <ws2-jurisdiction-bounces@icann.org> ws2-jurisdiction-bounces@icann.org> on behalf of Paul Rosenzweig < <paul.rosenzweig@redbranchconsulting.com> paul.rosenzweig@redbranchconsulting.com> *Date: *Monday, January 9, 2017 at 2:46 PM *To: *'Phil Corwin' <psc@vlaw-dc.com>, "'Mueller, Milton L'" < <milton@gatech.edu>milton@gatech.edu> *Cc: *" <ws2-jurisdiction-bounces@icann.org> ws2-jurisdiction-bounces@icann.org" <ws2-jurisdiction@icann.org> *Subject: *Re: [Ws2-jurisdiction] Jurisdiction Questionnaire: RESPONSE REQUESTED What time is the call tomorrow? I apologize, but I lost track of our scheduling decisions. Paul Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com> paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 <%28202%29%20547-0660> M: +1 (202) 329-9650 <%28202%29%20329-9650> VOIP: +1 (202) 738-1739 <%28202%29%20738-1739> <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting....> <http://www.redbranchconsulting.com>www.redbranchconsulting.com[ redbranchconsulting.com] My PGP Key: <https://urldefense.proofpoint.com/v2/url?u=https-3A__keys.mailvelope.com_pks...> https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684[ keys.mailvelope.com] *From:* Phil Corwin [mailto: <psc@vlaw-dc.com>psc@vlaw-dc.com] *Sent:* Monday, January 9, 2017 3:16 PM *To:* Paul Rosenzweig < <paul.rosenzweig@redbranchconsulting.com> paul.rosenzweig@redbranchconsulting.com>; 'Mueller, Milton L' < <milton@gatech.edu>milton@gatech.edu> *Cc:* <ws2-jurisdiction@icann.org>ws2-jurisdiction@icann.org *Subject:* RE: [Ws2-jurisdiction] Jurisdiction Questionnaire: RESPONSE REQUESTED Whatever the WG’s decision, I certainly hope we can decide this with finality on tomorrow’s call. Because right now we are like a car spinning its tires and just sinking deeper into the mud. We have already spent far too much time on this questionnaire matter. *Philip S. Corwin, Founding Principal* *Virtualaw LLC* *1155 F Street, NW* *Suite 1050* *Washington, DC 20004* *202-559-8597 <%28202%29%20559-8597>/Direct* *202-559-8750 <%28202%29%20559-8750>/Fax* *202-255-6172 <%28202%29%20255-6172>/Cell* *Twitter: @VlawDC* *"Luck is the residue of design" -- Branch Rickey* *From:* <ws2-jurisdiction-bounces@icann.org> ws2-jurisdiction-bounces@icann.org [ mailto:ws2-jurisdiction-bounces@icann.org <ws2-jurisdiction-bounces@icann.org>] *On Behalf Of *Paul Rosenzweig *Sent:* Monday, January 09, 2017 3:02 PM *To:* 'Mueller, Milton L' *Cc:* <ws2-jurisdiction@icann.org>ws2-jurisdiction@icann.org *Subject:* Re: [Ws2-jurisdiction] Jurisdiction Questionnaire: RESPONSE REQUESTED I gather, however, that some disagree and say “all now or none ever.” If that is my choice I choose none. If the idea of separation gains any traction, I’d be open to consideration but I fear it would not bet any better definition later and we would just be kicking the can down the road. Paul Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com> paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 <%28202%29%20547-0660> M: +1 (202) 329-9650 <%28202%29%20329-9650> VOIP: +1 (202) 738-1739 <%28202%29%20738-1739> <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting....> <http://www.redbranchconsulting.com>www.redbranchconsulting.com[ redbranchconsulting.com] My PGP Key: <https://urldefense.proofpoint.com/v2/url?u=https-3A__keys.mailvelope.com_pks...> https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684[ keys.mailvelope.com] *From:* Mueller, Milton L [mailto:milton@gatech.edu <milton@gatech.edu>] *Sent:* Monday, January 9, 2017 2:28 PM *To:* Paul Rosenzweig < <paul.rosenzweig@redbranchconsulting.com> paul.rosenzweig@redbranchconsulting.com> *Cc:* <ws2-jurisdiction@icann.org>ws2-jurisdiction@icann.org *Subject:* RE: [Ws2-jurisdiction] Jurisdiction Questionnaire: RESPONSE REQUESTED Paul Others in the group feel strongly that question 4 should go out. Some feel so strongly that they are of the view that it is all or nothing. While I don’t agree with them and while I certainly don’t agree with the idea that saying “all or nothing” is respectful of other people, I am not going to try any longer to change their minds. MM: Those who suggest that we should not send out a fact-finding missive at all because of Q4 also seem to be taking an “all or nothing approach” are they not? The reasonable solution, as I have said before, is to separate Q4 from the others and work on it some more to make it take a form that is acceptable to a broader range of WG participants. ------------------------------ No virus found in this message. 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Let's not rewrite history here. First, it was always the intention that ICANN would eventually be removed from NTIA oversight through expiration of the IANA agreement. Second, the removal of ICANN from NTIA oversight was not initiated by the multistakeholder community, it was initiated by the NTIA. Third, the plan for removal of ICANN from NTIA oversight did not originally include the CCWG-Accountability. The CCWG was only chartered after serious concerns were raised by the community, including "instances" where the community's ability to exercise oversight of ICANN were found wanting. Fourth, both the CWG-Stewardship and the CCWG-Accountability went through extensive review of current processes to determine where they needed to be replaced or enhanced (hence, the title of this CCWG). Greg On Tue, Jan 10, 2017 at 1:08 AM, John Laprise <jlaprise@gmail.com> wrote:
The difference is that we are not now under NTIA oversight. We are the captains of out destiny, as it were.
Doesn't examining US jurisdictional oversight include pros and cons?
Seriously? Allow? ICANN provides and allows ample opportunity for "people outside these hallowed circles" to say what they want. Participating here, at meetings, online, etc cetera. There is so much opportunity for public consultation that new participants find themselves at a loss when trying to find a place for their comments. That this group wants specific answers to a question on a survey is hardly the insult to public consultation/participation you claim it to be.
On Mon, Jan 9, 2017, 11:56 PM parminder <parminder@itforchange.net> wrote:
On Tuesday 10 January 2017 11:16 AM, John Laprise wrote:
Because if we are looking to improve the status quo, I'd like to see examples and evidence of what we're seeking to avoid in seeking a different jurisdiction and look at how said jurisdiction would address the cited problem.
Exit from NTIA oversight was also an improvement over the status quo -- why these criteria did not apply then ? The I* community asked for globalisation of ICANN without seeing these examples and evidences, following it up by the Netmundial conference. (Apart from the WSIS having done so much earlier.) Even during the transition process, no one asked for these evidences that justify change!
For many of us, examining the US jurisdictional oversight issue is simply completing the task of ICANN's globalisation.
It's not obstruction. If the claim is for a "better" jurisdiction, I want to know what, materially constitutes as better.
Sure, but can you all be so good as to allow people, outside these hallowed circles, to tell what they tell in their own words, rather than 'say this but not this, dont go here...' . That is an insult to public consultation, much less participation.
parminder
On Mon, Jan 9, 2017, 11:35 PM parminder < <parminder@itforchange.net> parminder@itforchange.net> wrote:
On Tuesday 10 January 2017 05:21 AM, Greg Shatan wrote:
Seeing some support for David McAuley's suggestion for Question 4 and some support for Alternative 1, I wonder if a combination of the two might be able to gain consensus support. Below (and attached in redline) is my suggested combination:
Are you aware of any material, documented instance(s) where ICANN has been unable to pursue the actual operation of its policies and accountability mechanisms because of ICANN’s jurisdiction? If so, please provide documentation, including specific examples and references to specific laws.
There has been no response to my query as to why such a condition of listing documented instances where ICANN has been unable to pursue its policies because of NTIA oversight was not applied before seeking and finalising exit from NTIA oversight. Neither documented proof of existing alternative accountability mechanism was sought.
Presenting these conditions now simply amounts to obstructing a proper inquiry into all aspects of ICANN's jurisdiction, as was agreed.
I dont agree to sending out Q1-3 in absence of Q4 because that is making a judgement on the mandate of this group, a judgement that I do not agree with.
parminder
Are you aware of and able to document the existence of an alternative jurisdiction where ICANN would not be so prevented from pursuing the actual operation of ICANN’s policies and accountability mechanisms? If so, please provide documentation, including specific examples, references to specific laws, case studies, other studies, and analysis.
I look forward to discussion of this and the other alternatives regarding Question 4 on our call tomorrow, and before that, on this list.
Greg
On Mon, Jan 9, 2017 at 3:52 PM, MSSI Secretariat < mssi-secretariat@icann.org> wrote:
Hello all,
In reply to Paul Rosenzweig, the Jurisdiction meeting on Tuesday, 10 January is at 13:00 UTC.
With kind regards,
*Brenda Brewer, Projects & Operations Assistant *
Multistakeholder Strategy & Strategic Initiatives (MSSI)
Internet Corporation for Assigned Names and Numbers (ICANN)
*From: *< <ws2-jurisdiction-bounces@icann.org>ws2-jurisdiction-bounces@ icann.org> on behalf of Paul Rosenzweig < <paul.rosenzweig@redbranchconsulting.com>paul.rosenzweig@ redbranchconsulting.com> *Date: *Monday, January 9, 2017 at 2:46 PM *To: *'Phil Corwin' <psc@vlaw-dc.com>, "'Mueller, Milton L'" < <milton@gatech.edu>milton@gatech.edu> *Cc: *" <ws2-jurisdiction-bounces@icann.org>ws2-jurisdiction-bounces@ icann.org" <ws2-jurisdiction@icann.org> *Subject: *Re: [Ws2-jurisdiction] Jurisdiction Questionnaire: RESPONSE REQUESTED
What time is the call tomorrow? I apologize, but I lost track of our scheduling decisions.
Paul
Paul Rosenzweig
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*From:* Phil Corwin [mailto: <psc@vlaw-dc.com>psc@vlaw-dc.com] *Sent:* Monday, January 9, 2017 3:16 PM *To:* Paul Rosenzweig < <paul.rosenzweig@redbranchconsulting.com> paul.rosenzweig@redbranchconsulting.com>; 'Mueller, Milton L' < <milton@gatech.edu>milton@gatech.edu> *Cc:* <ws2-jurisdiction@icann.org>ws2-jurisdiction@icann.org *Subject:* RE: [Ws2-jurisdiction] Jurisdiction Questionnaire: RESPONSE REQUESTED
Whatever the WG’s decision, I certainly hope we can decide this with finality on tomorrow’s call. Because right now we are like a car spinning its tires and just sinking deeper into the mud. We have already spent far too much time on this questionnaire matter.
*Philip S. Corwin, Founding Principal*
*Virtualaw LLC*
*1155 F Street, NW*
*Suite 1050*
*Washington, DC 20004*
*202-559-8597 <%28202%29%20559-8597>/Direct*
*202-559-8750 <%28202%29%20559-8750>/Fax*
*202-255-6172 <%28202%29%20255-6172>/Cell*
*Twitter: @VlawDC*
*"Luck is the residue of design" -- Branch Rickey*
*From:* <ws2-jurisdiction-bounces@icann.org>ws2-jurisdiction-bounces@ icann.org [mailto:ws2-jurisdiction-bounces@icann.org <ws2-jurisdiction-bounces@icann.org>] *On Behalf Of *Paul Rosenzweig *Sent:* Monday, January 09, 2017 3:02 PM *To:* 'Mueller, Milton L' *Cc:* <ws2-jurisdiction@icann.org>ws2-jurisdiction@icann.org *Subject:* Re: [Ws2-jurisdiction] Jurisdiction Questionnaire: RESPONSE REQUESTED
I gather, however, that some disagree and say “all now or none ever.” If that is my choice I choose none. If the idea of separation gains any traction, I’d be open to consideration but I fear it would not bet any better definition later and we would just be kicking the can down the road.
Paul
Paul Rosenzweig
<paul.rosenzweig@redbranchconsulting.com>paul.rosenzweig@ redbranchconsulting.com
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*From:* Mueller, Milton L [mailto:milton@gatech.edu <milton@gatech.edu>] *Sent:* Monday, January 9, 2017 2:28 PM *To:* Paul Rosenzweig < <paul.rosenzweig@redbranchconsulting.com> paul.rosenzweig@redbranchconsulting.com> *Cc:* <ws2-jurisdiction@icann.org>ws2-jurisdiction@icann.org *Subject:* RE: [Ws2-jurisdiction] Jurisdiction Questionnaire: RESPONSE REQUESTED
Paul
Others in the group feel strongly that question 4 should go out. Some feel so strongly that they are of the view that it is all or nothing. While I don’t agree with them and while I certainly don’t agree with the idea that saying “all or nothing” is respectful of other people, I am not going to try any longer to change their minds.
MM: Those who suggest that we should not send out a fact-finding missive at all because of Q4 also seem to be taking an “all or nothing approach” are they not?
The reasonable solution, as I have said before, is to separate Q4 from the others and work on it some more to make it take a form that is acceptable to a broader range of WG participants.
------------------------------
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Just ran across this. I think Greg’s version of history needs some correction: Let's not rewrite history here. First, it was always the intention that ICANN would eventually be removed from NTIA oversight through expiration of the IANA agreement. MM: half true. The Clinton administration did have that intention but the G.W. Bush administration backed away from it, and during WSIS issued a statement that it “will therefore maintain its historic role in authorizing changes or modifications to the authoritative root zone file.” https://www.ntia.doc.gov/other-publication/2005/us-principles-internets-doma... The Obama admin and particularly Asst Sec Strickling renewed that commitment. Second, the removal of ICANN from NTIA oversight was not initiated by the multistakeholder community, it was initiated by the NTIA. MM: Not true. Various civil society organizations and some governments had been clamoring for this change for years, and the USG did not do it. Post-Snowden, the immediate precipitant of the change was the Internet technical community’s “Montevideo Statement.” https://www.icann.org/news/announcement-2013-10-07-en To say that the NTIA was acting entirely on its own initiative and not to pressure created by the Snowden revelations is a bit of a distortion of the situation. Third, the plan for removal of ICANN from NTIA oversight did not originally include the CCWG-Accountability. The CCWG was only chartered after serious concerns were raised by the community, including "instances" where the community's ability to exercise oversight of ICANN were found wanting. MM: This is true.
On Tuesday 10 January 2017 11:38 AM, John Laprise wrote:
The difference is that we are not now under NTIA oversight. We are the captains of out destiny, as it were.
I dont see the difference vis a vis the issue I posed. A change being advised with or without clearly documented prior instances of "problems with", and of possible replacements that already exist and are demonstrably working.
Doesn't examining US jurisdictional oversight include pros and cons?
Yes, it absolutely does. That is why I have always supported seeking both advantages and disadvantages, of US jurisdictional oversight, as well as of any proposed alternatives.
Seriously? Allow? ICANN provides and allows ample opportunity for "people outside these hallowed circles" to say what they want. Participating here, at meetings, online, etc cetera.
That is the belief that ICANN community wishes to live in, but it is not structurally true. There are innumerable studies that will show that nominally open is not the same as substantive full participativeness. You must really think that since there are just a very few asking for a complete examination of the jurisdiction question, that number actually represent how many want a shift from single country's jurisdictional oversight? I have repeatedly pointed to the statement issued by scores of organisations in this regard as just one instance of the sentiment outside. Why are all those people not on this WG and attending the call, maybe if you think enough about it you can guess. Simple formal openness simply allows people with most resources - material, of time, as well as cultural, to dominate the processes. You all know this quite well, I dont have to write a paper here on formal openness versus substantive participativeness. There is huge literature out there on participatory processes. parminder
There is so much opportunity for public consultation that new participants find themselves at a loss when trying to find a place for their comments. That this group wants specific answers to a question on a survey is hardly the insult to public consultation/participation you claim it to be.
On Mon, Jan 9, 2017, 11:56 PM parminder <parminder@itforchange.net <mailto:parminder@itforchange.net>> wrote:
On Tuesday 10 January 2017 11:16 AM, John Laprise wrote:
Because if we are looking to improve the status quo, I'd like to see examples and evidence of what we're seeking to avoid in seeking a different jurisdiction and look at how said jurisdiction would address the cited problem.
Exit from NTIA oversight was also an improvement over the status quo -- why these criteria did not apply then ? The I* community asked for globalisation of ICANN without seeing these examples and evidences, following it up by the Netmundial conference. (Apart from the WSIS having done so much earlier.) Even during the transition process, no one asked for these evidences that justify change!
For many of us, examining the US jurisdictional oversight issue is simply completing the task of ICANN's globalisation.
It's not obstruction. If the claim is for a "better" jurisdiction, I want to know what, materially constitutes as better.
Sure, but can you all be so good as to allow people, outside these hallowed circles, to tell what they tell in their own words, rather than 'say this but not this, dont go here...' . That is an insult to public consultation, much less participation.
parminder
On Mon, Jan 9, 2017, 11:35 PM parminder <parminder@itforchange.net <mailto:parminder@itforchange.net>> wrote:
On Tuesday 10 January 2017 05:21 AM, Greg Shatan wrote:
Seeing some support for David McAuley's suggestion for Question 4 and some support for Alternative 1, I wonder if a combination of the two might be able to gain consensus support. Below (and attached in redline) is my suggested combination:
Are you aware of any material, documented instance(s) where ICANN has been unable to pursue the actual operation of its policies and accountability mechanisms because of ICANN’s jurisdiction? If so, please provide documentation, including specific examples and references to specific laws.
There has been no response to my query as to why such a condition of listing documented instances where ICANN has been unable to pursue its policies because of NTIA oversight was not applied before seeking and finalising exit from NTIA oversight. Neither documented proof of existing alternative accountability mechanism was sought.
Presenting these conditions now simply amounts to obstructing a proper inquiry into all aspects of ICANN's jurisdiction, as was agreed.
I dont agree to sending out Q1-3 in absence of Q4 because that is making a judgement on the mandate of this group, a judgement that I do not agree with.
parminder
Are you aware of and able to document the existence of an alternative jurisdiction where ICANN would not be so prevented from pursuing the actual operation of ICANN’s policies and accountability mechanisms? If so, please provide documentation, including specific examples, references to specific laws, case studies, other studies, and analysis.
I look forward to discussion of this and the other alternatives regarding Question 4 on our call tomorrow, and before that, on this list.
Greg
On Mon, Jan 9, 2017 at 3:52 PM, MSSI Secretariat <mssi-secretariat@icann.org <mailto:mssi-secretariat@icann.org>> wrote:
Hello all,
In reply to Paul Rosenzweig, the Jurisdiction meeting on Tuesday, 10 January is at 13:00 UTC.
With kind regards,
/Brenda Brewer, Projects & Operations Assistant /
Multistakeholder Strategy & Strategic Initiatives (MSSI)
Internet Corporation for Assigned Names and Numbers (ICANN)
*From: *<ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org>> on behalf of Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com>> *Date: *Monday, January 9, 2017 at 2:46 PM *To: *'Phil Corwin' <psc@vlaw-dc.com <mailto:psc@vlaw-dc.com>>, "'Mueller, Milton L'" <milton@gatech.edu <mailto:milton@gatech.edu>> *Cc: *"ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org>" <ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org>> *Subject: *Re: [Ws2-jurisdiction] Jurisdiction Questionnaire: RESPONSE REQUESTED
What time is the call tomorrow? I apologize, but I lost track of our scheduling decisions.
Paul
Paul Rosenzweig
<mailto:paul.rosenzweig@redbranchconsulting.com>paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com>
O: +1 (202) 547-0660 <tel:%28202%29%20547-0660>
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*From:*Phil Corwin [mailto:psc@vlaw-dc.com <mailto:psc@vlaw-dc.com>] *Sent:* Monday, January 9, 2017 3:16 PM *To:* Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com>>; 'Mueller, Milton L' <milton@gatech.edu <mailto:milton@gatech.edu>> *Cc:* ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> *Subject:* RE: [Ws2-jurisdiction] Jurisdiction Questionnaire: RESPONSE REQUESTED
Whatever the WG’s decision, I certainly hope we can decide this with finality on tomorrow’s call. Because right now we are like a car spinning its tires and just sinking deeper into the mud. We have already spent far too much time on this questionnaire matter.
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*From:*ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] *On Behalf Of *Paul Rosenzweig *Sent:* Monday, January 09, 2017 3:02 PM *To:* 'Mueller, Milton L' *Cc:* ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> *Subject:* Re: [Ws2-jurisdiction] Jurisdiction Questionnaire: RESPONSE REQUESTED
I gather, however, that some disagree and say “all now or none ever.” If that is my choice I choose none. If the idea of separation gains any traction, I’d be open to consideration but I fear it would not bet any better definition later and we would just be kicking the can down the road.
Paul
Paul Rosenzweig
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*From:*Mueller, Milton L [mailto:milton@gatech.edu] *Sent:* Monday, January 9, 2017 2:28 PM *To:* Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com>> *Cc:* ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> *Subject:* RE: [Ws2-jurisdiction] Jurisdiction Questionnaire: RESPONSE REQUESTED
Paul
Others in the group feel strongly that question 4 should go out. Some feel so strongly that they are of the view that it is all or nothing. While I don’t agree with them and while I certainly don’t agree with the idea that saying “all or nothing” is respectful of other people, I am not going to try any longer to change their minds.
MM: Those who suggest that we should not send out a fact-finding missive at all because of Q4 also seem to be taking an “all or nothing approach” are they not?
The reasonable solution, as I have said before, is to separate Q4 from the others and work on it some more to make it take a form that is acceptable to a broader range of WG participants.
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Dear Greg Thank you for your efforts, once again. Let me restate that I support alternative 1 for question 4, as it has been the one which garnered the most support so far (at least that’s what I have seen on list and on the calls). Kind regards to all Jorge Von: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] Im Auftrag von Greg Shatan Gesendet: Samstag, 7. Januar 2017 19:23 An: ws2-jurisdiction <ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org>> Betreff: [Ws2-jurisdiction] Jurisdiction Questionnaire: RESPONSE REQUESTED All, We made some good progress on our call on Friday, January 6. Following a wide-ranging discussion, we were able to make some headway on refining the draft questionnaire. I encourage those who missed the call to review the recording and notes. Specifically, we came to a preliminary conclusion on revising the Preamble and Question 1, subject to comment on this list and a final discussion on our next call (Tuesday, January 10 at 13:00). Question 2 had no revisions suggested, and Question 3 had only one revision suggested. The Preamble and Questions 1, 2 and 3 (with the proposed revision in "track changes") are in the first document below (Word and PDF documents) and also in text below. Please review this version of the Preamble and Questions 1-3 and provide support (or lack of support) and/or comments for this portion. We also discussed several aspects of Question 4, including the purpose of the question; whether the question is different in nature from Questions 1-3; whether or not the question should be included in this questionnaire, a subsequent questionnaire or not at all; the types of responses desired (and the types expected); and the drafting of the question itself. With these topics and seven drafting alternatives (and the ability to pick and choose elements of those alternatives), this required more time than we had left on the call. Therefore, we did not come to any preliminary conclusions on Question 4. The drafting alternatives for Question 4 (including the current version) are in the second draft document (Word and PDF). Please look at the alternatives carefully, particularly if you have not supported sending question 4 in its current form. Please review the options for Question 4 and respond, indicating (a) Which version(s) of Question 4 you could support and which you would object to, and (b) If the answer to (a) is "none," how you would change or combine one or more alternatives in order to support it. We will conclude this discussion on our call of January 10, so please provide your thoughts and responses before then. Thank you. Greg VERSION OF PREAMBLE AND QUESTIONS 1-3 FOR REVIEW PREAMBLE The newly-adopted ICANN bylaws created several Work Stream 2 accountability subgroups. One of them, the subgroup on Jurisdiction, is posing the questions below for community input into the subgroup’s deliberations. As directed by Bylaw Article 27, Section 27.1(b)(vi)<https://www.icann.org/resources/pages/governance/bylaws-en/#article27> and to the extent set forth in the CCWG-Accountability Final Report<https://community.icann.org/pages/viewpage.action?pageId=58723827&preview=/58723827/58726532/Main%20Report%20-%20FINAL-Revised.pdf>,[1] the Jurisdiction subgroup is addressing jurisdiction*-related questions, including how choice of jurisdiction and applicable laws for dispute settlement impact ICANN's accountability and the actual operation of policies. To help the subgroup in these endeavors we are asking you to consider and respond to the following specific questions. In this regard, the subgroup is asking for concrete, factual submissions (positive, negative, or neutral) that will help ensure that the subgroup’s deliberations are informed, fact-based, and address real issues. The subgroup is interested in all types of jurisdiction-related factual experiences, not just those involving actual disputes/court cases. QUESTION 1 Has your business, your privacy or your ability to use or purchase domain name-related services been affected by ICANN's jurisdiction* in any way? If the answer is Yes, please describe specific cases, situations or incidents, including the date, the parties involved, and links to any relevant documents. Please note that “affected” may refer to positive and/or negative effects. QUESTION 2 Has ICANN's jurisdiction* affected any dispute resolution process or litigation related to domain names you have been involved in? If the answer is Yes, please describe specific cases, situations or incidents, including the date, the parties involved, and links to any relevant documents. Please note that “affected” may refer to positive and/or negative effects. QUESTION 3 Do you have copies of and/or links to any verifiable reports of experiences of other parties that would be responsive to the questions above? If the answer is yes, please provide these copies and/or links. Please provide either first-person accounts or reliable third-party accounts such as news reports; please do not provide your own version of events. ________________________________ [1] See CCWG-Accountability Main Report, paragraphs 6 and 234, and Annex 12, paragraphs 25-31. * For this Questionnaire, “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.
participants (19)
-
Burr, Becky -
farzaneh badii -
Finn Petersen -
George Sadowsky -
Greg Shatan -
John Laprise -
Jorge.Cancio＠bakom.admin.ch -
Kavouss Arasteh -
Mathieu Weill -
matthew shears -
McAuley, David -
MSSI Secretariat -
Mueller, Milton L -
parminder -
Paul Rosenzweig -
Phil Corwin -
Schweighofer Erich -
Seun Ojedeji -
Steve DelBianco