first draft of fact solicitation questions
CW and I have agreed on the following draft: Request for stakeholder input on jurisdiction issues The Jurisdiction subgroup of the CCWG Accountability is asking for the community to provide factual input on the following questions: 1. Has your business, your privacy or your ability to use or purchase DNS-related services, been affected by ICANN's jurisdiction in any way? If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents. 2. Has ICANN's jurisdiction affected any dispute resolution process or litigation related to domain names you have been involved in? If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents. Dr. Milton L. Mueller Professor, School of Public Policy Georgia Institute of Technology
These seem well-stated, except perhaps they should not be looking only for personal experience, but broaden the request to seek any experience the responder is aware of? So I suggest something like: 1. Are you aware of any instance in which anyone's business, privacy, or ability to use or purchase DNS-related services, has been affected by ICANN's jurisdiction in any way? If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents. 2. Are you aware of any instance in which ICANN's jurisdiction affected any dispute resolution process or litigation related to domain names? If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents. Mike Rodenbaugh RODENBAUGH LAW tel/fax: +1.415.738.8087 http://rodenbaugh.com On Wed, Nov 23, 2016 at 6:47 AM, Mueller, Milton L <milton@gatech.edu> wrote:
CW and I have agreed on the following draft:
*Request for stakeholder input on jurisdiction issues*
The Jurisdiction subgroup of the CCWG Accountability is asking for the community to provide factual input on the following questions:
1. Has your business, your privacy or your ability to use or purchase DNS-related services, been affected by ICANN's jurisdiction in any way?
If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents.
2. Has ICANN's jurisdiction affected any dispute resolution process or litigation related to domain names you have been involved in?
If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents.
Dr. Milton L. Mueller
Professor, School of Public Policy
Georgia Institute of Technology
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
Mike: I might see the point of broadening, if possible, the scope and catchment of the questions, but perhaps not in that way. We should be dealing with Principals (in the sense of directly with those responsible for the entities concerned). Not their surrogates or other third parties. Otherwise we risk receiving second hand information with which the Principals may not agree, and inviting 'bulk' replies from interested organisations. We should also be cautious about receiving anonymous hearsay. Just a thought CW On 23 Nov 2016, at 17:20, Mike Rodenbaugh <mike@rodenbaugh.com> wrote:
These seem well-stated, except perhaps they should not be looking only for personal experience, but broaden the request to seek any experience the responder is aware of? So I suggest something like:
1. Are you aware of any instance in which anyone's business, privacy, or ability to use or purchase DNS-related services, has been affected by ICANN's jurisdiction in any way?
If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents.
2. Are you aware of any instance in which ICANN's jurisdiction affected any dispute resolution process or litigation related to domain names?
If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents.
Mike Rodenbaugh RODENBAUGH LAW tel/fax: +1.415.738.8087 http://rodenbaugh.com
On Wed, Nov 23, 2016 at 6:47 AM, Mueller, Milton L <milton@gatech.edu> wrote: CW and I have agreed on the following draft:
Request for stakeholder input on jurisdiction issues
The Jurisdiction subgroup of the CCWG Accountability is asking for the community to provide factual input on the following questions:
1. Has your business, your privacy or your ability to use or purchase DNS-related services, been affected by ICANN's jurisdiction in any way?
If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents.
2. Has ICANN's jurisdiction affected any dispute resolution process or litigation related to domain names you have been involved in?
If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents.
Dr. Milton L. Mueller
Professor, School of Public Policy
Georgia Institute of Technology
_______________________________________________ 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 with CW on this one -- we are looking for first person facts, experiences and "anecdotal evidence." The facts are best known by the participants, and third parties (viewing events from the outside) often make assumptions about what happened or otherwise get things wrong. Greg On Wed, Nov 23, 2016 at 1:04 PM, CW Mail <mail@christopherwilkinson.eu> wrote:
Mike: I might see the point of broadening, if possible, the scope and catchment of the questions, but perhaps not in that way.
We should be dealing with Principals (in the sense of directly with those responsible for the entities concerned). Not their surrogates or other third parties. Otherwise we risk receiving second hand information with which the Principals may not agree, and inviting 'bulk' replies from interested organisations.
We should also be cautious about receiving anonymous hearsay.
Just a thought
CW
On 23 Nov 2016, at 17:20, Mike Rodenbaugh <mike@rodenbaugh.com> wrote:
These seem well-stated, except perhaps they should not be looking only for personal experience, but broaden the request to seek any experience the responder is aware of? So I suggest something like:
1. Are you aware of any instance in which anyone's business, privacy, or ability to use or purchase DNS-related services, has been affected by ICANN's jurisdiction in any way?
If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents.
2. Are you aware of any instance in which ICANN's jurisdiction affected any dispute resolution process or litigation related to domain names?
If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents.
Mike Rodenbaugh RODENBAUGH LAW tel/fax: +1.415.738.8087 http://rodenbaugh.com
On Wed, Nov 23, 2016 at 6:47 AM, Mueller, Milton L <milton@gatech.edu> wrote:
CW and I have agreed on the following draft:
*Request for stakeholder input on jurisdiction issues*
The Jurisdiction subgroup of the CCWG Accountability is asking for the community to provide factual input on the following questions:
1. Has your business, your privacy or your ability to use or purchase DNS-related services, been affected by ICANN's jurisdiction in any way?
If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents.
2. Has ICANN's jurisdiction affected any dispute resolution process or litigation related to domain names you have been involved in?
If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents.
Dr. Milton L. Mueller
Professor, School of Public Policy
Georgia Institute of Technology
_______________________________________________ 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
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
+1 Everyone has opinions and second hand information. We want primary sources on t his … P 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: <http://redbranchconsulting.com/who-we-are/public-pgp-key/> http://redbranchconsulting.com/who-we-are/public-pgp-key/ From: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Greg Shatan Sent: Wednesday, November 23, 2016 2:06 PM To: CW Mail <mail@christopherwilkinson.eu> Cc: ws2-jurisdiction@icann.org Subject: Re: [Ws2-jurisdiction] first draft of fact solicitation questions I agree with CW on this one -- we are looking for first person facts, experiences and "anecdotal evidence." The facts are best known by the participants, and third parties (viewing events from the outside) often make assumptions about what happened or otherwise get things wrong. Greg On Wed, Nov 23, 2016 at 1:04 PM, CW Mail <mail@christopherwilkinson.eu <mailto:mail@christopherwilkinson.eu> > wrote: Mike: I might see the point of broadening, if possible, the scope and catchment of the questions, but perhaps not in that way. We should be dealing with Principals (in the sense of directly with those responsible for the entities concerned). Not their surrogates or other third parties. Otherwise we risk receiving second hand information with which the Principals may not agree, and inviting 'bulk' replies from interested organisations. We should also be cautious about receiving anonymous hearsay. Just a thought CW On 23 Nov 2016, at 17:20, Mike Rodenbaugh <mike@rodenbaugh.com <mailto:mike@rodenbaugh.com> > wrote: These seem well-stated, except perhaps they should not be looking only for personal experience, but broaden the request to seek any experience the responder is aware of? So I suggest something like: 1. Are you aware of any instance in which anyone's business, privacy, or ability to use or purchase DNS-related services, has been affected by ICANN's jurisdiction in any way? If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents. 2. Are you aware of any instance in which ICANN's jurisdiction affected any dispute resolution process or litigation related to domain names? If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents. Mike Rodenbaugh RODENBAUGH LAW tel/fax: +1.415.738.8087 <tel:%2B1.415.738.8087> http://rodenbaugh.com <http://rodenbaugh.com/> On Wed, Nov 23, 2016 at 6:47 AM, Mueller, Milton L <milton@gatech.edu <mailto:milton@gatech.edu> > wrote: CW and I have agreed on the following draft: Request for stakeholder input on jurisdiction issues The Jurisdiction subgroup of the CCWG Accountability is asking for the community to provide factual input on the following questions: 1. Has your business, your privacy or your ability to use or purchase DNS-related services, been affected by ICANN's jurisdiction in any way? If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents. 2. Has ICANN's jurisdiction affected any dispute resolution process or litigation related to domain names you have been involved in? If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents. Dr. Milton L. Mueller Professor, School of Public Policy Georgia Institute of Technology _______________________________________________ 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 _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
I think we want the broadest range of experiences, but of course would not consider hearsay. If anyone can point us to documents about anyone else's experiences, then what is the harm in considering those documents? To me, the worse risk is that we don't hear about them at all because the person who had the experience does not see our survey. Mike Rodenbaugh RODENBAUGH LAW tel/fax: +1.415.738.8087 http://rodenbaugh.com On Wed, Nov 23, 2016 at 11:27 AM, Paul Rosenzweig < paul.rosenzweig@redbranchconsulting.com> wrote:
+1 Everyone has opinions and second hand information. We want primary sources on t his …
P
Paul Rosenzweig
paul.rosenzweig@redbranchconsulting.com
O: +1 (202) 547-0660
M: +1 (202) 329-9650
VOIP: +1 (202) 738-1739
www.redbranchconsulting.com
My PGP Key: http://redbranchconsulting.com/who-we-are/public-pgp-key/
*From:* ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction- bounces@icann.org] *On Behalf Of *Greg Shatan *Sent:* Wednesday, November 23, 2016 2:06 PM *To:* CW Mail <mail@christopherwilkinson.eu> *Cc:* ws2-jurisdiction@icann.org *Subject:* Re: [Ws2-jurisdiction] first draft of fact solicitation questions
I agree with CW on this one -- we are looking for first person facts, experiences and "anecdotal evidence." The facts are best known by the participants, and third parties (viewing events from the outside) often make assumptions about what happened or otherwise get things wrong.
Greg
On Wed, Nov 23, 2016 at 1:04 PM, CW Mail <mail@christopherwilkinson.eu> wrote:
Mike: I might see the point of broadening, if possible, the scope and catchment of the questions, but perhaps not in that way.
We should be dealing with Principals (in the sense of directly with those responsible for the entities concerned). Not their surrogates or other third parties.
Otherwise we risk receiving second hand information with which the Principals may not agree, and inviting 'bulk' replies from interested organisations.
We should also be cautious about receiving anonymous hearsay.
Just a thought
CW
On 23 Nov 2016, at 17:20, Mike Rodenbaugh <mike@rodenbaugh.com> wrote:
These seem well-stated, except perhaps they should not be looking only for personal experience, but broaden the request to seek any experience the responder is aware of? So I suggest something like:
1. Are you aware of any instance in which anyone's business, privacy, or ability to use or purchase DNS-related services, has been affected by ICANN's jurisdiction in any way?
If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents.
2. Are you aware of any instance in which ICANN's jurisdiction affected any dispute resolution process or litigation related to domain names?
If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents.
Mike Rodenbaugh
RODENBAUGH LAW
tel/fax: +1.415.738.8087
On Wed, Nov 23, 2016 at 6:47 AM, Mueller, Milton L <milton@gatech.edu> wrote:
CW and I have agreed on the following draft:
*Request for stakeholder input on jurisdiction issues*
The Jurisdiction subgroup of the CCWG Accountability is asking for the community to provide factual input on the following questions:
1. Has your business, your privacy or your ability to use or purchase DNS-related services, been affected by ICANN's jurisdiction in any way?
If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents.
2. Has ICANN's jurisdiction affected any dispute resolution process or litigation related to domain names you have been involved in?
If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents.
Dr. Milton L. Mueller
Professor, School of Public Policy
Georgia Institute of Technology
_______________________________________________ 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
_______________________________________________ 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
+1 it's better to be overbroad than to exclude interesting info beforehand. Some may even be reluctant to come forward openly with their issues if the dispute did not or has not reached a formal stage. Remember that many issues do not reach such formal stage for many reasons, but we nevertheless may learn from such experiences. regards Jorge ________________________________ Von: Mike Rodenbaugh <mike@rodenbaugh.com> Datum: 23. November 2016 um 20:31:08 MEZ An: Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com> Cc: ws2-jurisdiction@icann.org <ws2-jurisdiction@icann.org> Betreff: Re: [Ws2-jurisdiction] first draft of fact solicitation questions I think we want the broadest range of experiences, but of course would not consider hearsay. If anyone can point us to documents about anyone else's experiences, then what is the harm in considering those documents? To me, the worse risk is that we don't hear about them at all because the person who had the experience does not see our survey. Mike Rodenbaugh RODENBAUGH LAW tel/fax: +1.415.738.8087 http://rodenbaugh.com On Wed, Nov 23, 2016 at 11:27 AM, Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>> wrote: +1 Everyone has opinions and second hand information. We want primary sources on t his … P Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com> O: +1 (202) 547-0660<tel:%2B1%20%28202%29%20547-0660> M: +1 (202) 329-9650<tel:%2B1%20%28202%29%20329-9650> VOIP: +1 (202) 738-1739<tel:%2B1%20%28202%29%20738-1739> www.redbranchconsulting.com<http://www.redbranchconsulting.com/> My PGP Key: http://redbranchconsulting.com/who-we-are/public-pgp-key/ From: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org>] On Behalf Of Greg Shatan Sent: Wednesday, November 23, 2016 2:06 PM To: CW Mail <mail@christopherwilkinson.eu<mailto:mail@christopherwilkinson.eu>> Cc: ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org> Subject: Re: [Ws2-jurisdiction] first draft of fact solicitation questions I agree with CW on this one -- we are looking for first person facts, experiences and "anecdotal evidence." The facts are best known by the participants, and third parties (viewing events from the outside) often make assumptions about what happened or otherwise get things wrong. Greg On Wed, Nov 23, 2016 at 1:04 PM, CW Mail <mail@christopherwilkinson.eu<mailto:mail@christopherwilkinson.eu>> wrote: Mike: I might see the point of broadening, if possible, the scope and catchment of the questions, but perhaps not in that way. We should be dealing with Principals (in the sense of directly with those responsible for the entities concerned). Not their surrogates or other third parties. Otherwise we risk receiving second hand information with which the Principals may not agree, and inviting 'bulk' replies from interested organisations. We should also be cautious about receiving anonymous hearsay. Just a thought CW On 23 Nov 2016, at 17:20, Mike Rodenbaugh <mike@rodenbaugh.com<mailto:mike@rodenbaugh.com>> wrote: These seem well-stated, except perhaps they should not be looking only for personal experience, but broaden the request to seek any experience the responder is aware of? So I suggest something like: 1. Are you aware of any instance in which anyone's business, privacy, or ability to use or purchase DNS-related services, has been affected by ICANN's jurisdiction in any way? If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents. 2. Are you aware of any instance in which ICANN's jurisdiction affected any dispute resolution process or litigation related to domain names? If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents. Mike Rodenbaugh RODENBAUGH LAW tel/fax: +1.415.738.8087<tel:%2B1.415.738.8087> http://rodenbaugh.com<http://rodenbaugh.com/> On Wed, Nov 23, 2016 at 6:47 AM, Mueller, Milton L <milton@gatech.edu<mailto:milton@gatech.edu>> wrote: CW and I have agreed on the following draft: Request for stakeholder input on jurisdiction issues The Jurisdiction subgroup of the CCWG Accountability is asking for the community to provide factual input on the following questions: 1. Has your business, your privacy or your ability to use or purchase DNS-related services, been affected by ICANN's jurisdiction in any way? If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents. 2. Has ICANN's jurisdiction affected any dispute resolution process or litigation related to domain names you have been involved in? If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents. Dr. Milton L. Mueller Professor, School of Public Policy Georgia Institute of Technology _______________________________________________ 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 _______________________________________________ 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
+1 On 23-Nov-16 14:31, Mike Rodenbaugh wrote:
I think we want the broadest range of experiences, but of course would not consider hearsay. If anyone can point us to documents about anyone else's experiences, then what is the harm in considering those documents? To me, the worse risk is that we don't hear about them at all because the person who had the experience does not see our survey.
Mike Rodenbaugh RODENBAUGH LAW tel/fax: +1.415.738.8087 http://rodenbaugh.com
On Wed, Nov 23, 2016 at 11:27 AM, Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com>> wrote:
+1 Everyone has opinions and second hand information. We want primary sources on t his …
P
Paul Rosenzweig
paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com>
O: +1 (202) 547-0660 <tel:%2B1%20%28202%29%20547-0660>
M: +1 (202) 329-9650 <tel:%2B1%20%28202%29%20329-9650>
VOIP: +1 (202) 738-1739 <tel:%2B1%20%28202%29%20738-1739>
www.redbranchconsulting.com <http://www.redbranchconsulting.com/>
My PGP Key: http://redbranchconsulting.com/who-we-are/public-pgp-key/ <http://redbranchconsulting.com/who-we-are/public-pgp-key/> __
*From:*ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org>] *On Behalf Of *Greg Shatan *Sent:* Wednesday, November 23, 2016 2:06 PM *To:* CW Mail <mail@christopherwilkinson.eu <mailto:mail@christopherwilkinson.eu>> *Cc:* ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> *Subject:* Re: [Ws2-jurisdiction] first draft of fact solicitation questions
I agree with CW on this one -- we are looking for first person facts, experiences and "anecdotal evidence." The facts are best known by the participants, and third parties (viewing events from the outside) often make assumptions about what happened or otherwise get things wrong.
Greg
On Wed, Nov 23, 2016 at 1:04 PM, CW Mail <mail@christopherwilkinson.eu <mailto:mail@christopherwilkinson.eu>> wrote:
Mike: I might see the point of broadening, if possible, the scope and catchment of the questions, but perhaps not in that way.
We should be dealing with Principals (in the sense of directly with those responsible for the entities concerned). Not their surrogates or other third parties.
Otherwise we risk receiving second hand information with which the Principals may not agree, and inviting 'bulk' replies from interested organisations.
We should also be cautious about receiving anonymous hearsay.
Just a thought
CW
On 23 Nov 2016, at 17:20, Mike Rodenbaugh <mike@rodenbaugh.com <mailto:mike@rodenbaugh.com>> wrote:
These seem well-stated, except perhaps they should not be looking only for personal experience, but broaden the request to seek any experience the responder is aware of? So I suggest something like:
1. Are you aware of any instance in which anyone's business, privacy, or ability to use or purchase DNS-related services, has been affected by ICANN's jurisdiction in any way?
If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents.
2. Are you aware of any instance in which ICANN's jurisdiction affected any dispute resolution process or litigation related to domain names?
If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents.
Mike Rodenbaugh
RODENBAUGH LAW
tel/fax: +1.415.738.8087 <tel:%2B1.415.738.8087>
http://rodenbaugh.com <http://rodenbaugh.com/>
On Wed, Nov 23, 2016 at 6:47 AM, Mueller, Milton L <milton@gatech.edu <mailto:milton@gatech.edu>> wrote:
CW and I have agreed on the following draft:
*Request for stakeholder input on jurisdiction issues*
The Jurisdiction subgroup of the CCWG Accountability is asking for the community to provide factual input on the following questions:
1. Has your business, your privacy or your ability to use or purchase DNS-related services, been affected by ICANN's jurisdiction in any way?
If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents.
2. Has ICANN's jurisdiction affected any dispute resolution process or litigation related to domain names you have been involved in?
If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents.
Dr. Milton L. Mueller
Professor, School of Public Policy
Georgia Institute of Technology
_______________________________________________ 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>
_______________________________________________ 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>
_______________________________________________ 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>
_______________________________________________ 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>
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
--- This email has been checked for viruses by Avast antivirus software. https://www.avast.com/antivirus
I agree with CW, Greg, and Paul David McAuley From: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Paul Rosenzweig Sent: Wednesday, November 23, 2016 2:27 PM To: 'Greg Shatan'; 'CW Mail' Cc: ws2-jurisdiction@icann.org Subject: Re: [Ws2-jurisdiction] first draft of fact solicitation questions +1 Everyone has opinions and second hand information. We want primary sources on t his … P 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: http://redbranchconsulting.com/who-we-are/public-pgp-key/ From: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Greg Shatan Sent: Wednesday, November 23, 2016 2:06 PM To: CW Mail <mail@christopherwilkinson.eu<mailto:mail@christopherwilkinson.eu>> Cc: ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org> Subject: Re: [Ws2-jurisdiction] first draft of fact solicitation questions I agree with CW on this one -- we are looking for first person facts, experiences and "anecdotal evidence." The facts are best known by the participants, and third parties (viewing events from the outside) often make assumptions about what happened or otherwise get things wrong. Greg On Wed, Nov 23, 2016 at 1:04 PM, CW Mail <mail@christopherwilkinson.eu<mailto:mail@christopherwilkinson.eu>> wrote: Mike: I might see the point of broadening, if possible, the scope and catchment of the questions, but perhaps not in that way. We should be dealing with Principals (in the sense of directly with those responsible for the entities concerned). Not their surrogates or other third parties. Otherwise we risk receiving second hand information with which the Principals may not agree, and inviting 'bulk' replies from interested organisations. We should also be cautious about receiving anonymous hearsay. Just a thought CW On 23 Nov 2016, at 17:20, Mike Rodenbaugh <mike@rodenbaugh.com<mailto:mike@rodenbaugh.com>> wrote: These seem well-stated, except perhaps they should not be looking only for personal experience, but broaden the request to seek any experience the responder is aware of? So I suggest something like: 1. Are you aware of any instance in which anyone's business, privacy, or ability to use or purchase DNS-related services, has been affected by ICANN's jurisdiction in any way? If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents. 2. Are you aware of any instance in which ICANN's jurisdiction affected any dispute resolution process or litigation related to domain names? If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents. Mike Rodenbaugh RODENBAUGH LAW tel/fax: +1.415.738.8087<tel:%2B1.415.738.8087> http://rodenbaugh.com<http://rodenbaugh.com/> On Wed, Nov 23, 2016 at 6:47 AM, Mueller, Milton L <milton@gatech.edu<mailto:milton@gatech.edu>> wrote: CW and I have agreed on the following draft: Request for stakeholder input on jurisdiction issues The Jurisdiction subgroup of the CCWG Accountability is asking for the community to provide factual input on the following questions: 1. Has your business, your privacy or your ability to use or purchase DNS-related services, been affected by ICANN's jurisdiction in any way? If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents. 2. Has ICANN's jurisdiction affected any dispute resolution process or litigation related to domain names you have been involved in? If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents. Dr. Milton L. Mueller Professor, School of Public Policy Georgia Institute of Technology _______________________________________________ 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 _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
On Wednesday 23 November 2016 09:50 PM, Mike Rodenbaugh wrote:
These seem well-stated, except perhaps they should not be looking only for personal experience, but broaden the request to seek any experience the responder is aware of? So I suggest something like:
1. Are you aware of any instance in which anyone's business, privacy, or ability to use or purchase DNS-related services, has been affected by ICANN's jurisdiction in any way?
I have some larger issues with the objective and spirit of this questionnaire, but a smaller thing first -- what do you mean here by 'ICANN jurisdiction' . Of course not ICANN's jurisdiction over, but the jurisdiction over ICANN. If you really mean US state's jurisdiction over ICANN i think it needs to be said in that many words. Or whatever it is should be made clear. parminder
If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents.
2. Are you aware of any instance in which ICANN's jurisdiction affected any dispute resolution process or litigation related to domain names?
If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents.
Mike Rodenbaugh RODENBAUGH LAW tel/fax: +1.415.738.8087 http://rodenbaugh.com
On Wed, Nov 23, 2016 at 6:47 AM, Mueller, Milton L <milton@gatech.edu <mailto:milton@gatech.edu>> wrote:
CW and I have agreed on the following draft:
*Request for stakeholder input on jurisdiction issues***
The Jurisdiction subgroup of the CCWG Accountability is asking for the community to provide factual input on the following questions:
1. Has your business, your privacy or your ability to use or purchase DNS-related services, been affected by ICANN's jurisdiction in any way?
If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents.
2. Has ICANN's jurisdiction affected any dispute resolution process or litigation related to domain names you have been involved in?
If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents.
Dr. Milton L. Mueller
Professor, School of Public Policy
Georgia Institute of Technology
_______________________________________________ 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>
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
We could say "ICANN's jurisdiction of incorporation". From: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of parminder Sent: Wednesday, November 23, 2016 11:11 PM To: ws2-jurisdiction@icann.org Subject: Re: [Ws2-jurisdiction] first draft of fact solicitation questions On Wednesday 23 November 2016 09:50 PM, Mike Rodenbaugh wrote: These seem well-stated, except perhaps they should not be looking only for personal experience, but broaden the request to seek any experience the responder is aware of? So I suggest something like: 1. Are you aware of any instance in which anyone's business, privacy, or ability to use or purchase DNS-related services, has been affected by ICANN's jurisdiction in any way? I have some larger issues with the objective and spirit of this questionnaire, but a smaller thing first -- what do you mean here by 'ICANN jurisdiction' . Of course not ICANN's jurisdiction over, but the jurisdiction over ICANN. If you really mean US state's jurisdiction over ICANN i think it needs to be said in that many words. Or whatever it is should be made clear. parminder If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents. 2. Are you aware of any instance in which ICANN's jurisdiction affected any dispute resolution process or litigation related to domain names? If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents. Mike Rodenbaugh RODENBAUGH LAW tel/fax: +1.415.738.8087 http://rodenbaugh.com On Wed, Nov 23, 2016 at 6:47 AM, Mueller, Milton L <milton@gatech.edu<mailto:milton@gatech.edu>> wrote: CW and I have agreed on the following draft: Request for stakeholder input on jurisdiction issues The Jurisdiction subgroup of the CCWG Accountability is asking for the community to provide factual input on the following questions: 1. Has your business, your privacy or your ability to use or purchase DNS-related services, been affected by ICANN's jurisdiction in any way? If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents. 2. Has ICANN's jurisdiction affected any dispute resolution process or litigation related to domain names you have been involved in? If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents. Dr. Milton L. Mueller Professor, School of Public Policy Georgia Institute of Technology _______________________________________________ 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
Chairs/ All First, I want to be made absolutely clear about the objective of this exercise, and the purposes that it will be used for. All information is good, but then I hope we do not later 'decide' that we will now work only on the basis of the 'clear objective information' that has been made available to us. There is a saying in development sector 'first we begin to measure what is important, but soon begin to consider only that important which can and has been measured'. People often fall into this trap, but here i think we may even be setting the trap for ourselves. Did we take an 'objective view' of 'actual tabulatable instances of existing or past problems' when we developed the community accountability mechanism? US jurisdiction is also an oversight mechanism, like direct NTIA role was. We never sought a list of actual problems that have already occurred vis a vis NTIA's role, in deciding to replace it. We just knew that it is not quite ok - on principle, and perhaps taking from various analogies. Exactly in the same way, application of US jurisdiction on a key global infrastructure is not ok. As to why it is not ok, you were recently made aware of a statement made by practically all civil society organisations in India (with one seventh of world's population) involved in IG, supported by two of the largest global civil society networks in this area. The statement explained, with the brevity that a statement allows, some key issues with continued US jurisdiction over ICANN, including taking account of past/ existing events . But people here have called those views, to quote, as "fringe views". Very well! And perhaps now I have to understand that these views are not considered important becuase they do not refer to specific personal problems that any person or party have itself brought forward. They are third party views, generalisations, and so on... I see the effort here as a part of the larger ideology under which ICANNunfortunatelyoperates, which only recognises individuals, and see social systems as being a network of empowered individuals in contractual relationships with each other, and being entirely responsible to stand up for themselves. As Thatcher said, there is no society.... And so each is to and for ones own. Neither are their any larger issues of public interest, which do not specifically pertain to one person or the other. Nor, is there any kind of political representativity, whereby if you cannot come to the table, even when expressly called, as through this proposed questionnaire, then you are not to be considered. This is why the views of a big organised part of public opinion, as expressed in the said civil society statement, are taken as 'fringe views' and we want to depend on personal testimonies of personal impact of individuals who have the readiness and capability to stand up for themselves and speak. Are we really thinking that as soon as this questionnaire goes out, to the limited channels that are already quite engaged with this process, we will have an avalanche of specific problems that we seek an account of. All or most of the key cases where domain name policies or implementation have had to grapple with jurisdictional issues are already well known. You may at the best unearth one or two more cases, quite like the known ones, but about even that I am doubtful. So, basically we are setting ourselves up for not getting any or much response, which perhaps will help us 'decide' that people really are not bothered about the 'jurisdiction' issue and there arent really any problems about current jurisdictional configurations..... I find it difficult to go with exercise. But I am open to be explained the objected and expected outcome of this exercise, as being different from what I am surmising. thanks, parminder On Wednesday 23 November 2016 09:50 PM, Mike Rodenbaugh wrote:
These seem well-stated, except perhaps they should not be looking only for personal experience, but broaden the request to seek any experience the responder is aware of? So I suggest something like:
1. Are you aware of any instance in which anyone's business, privacy, or ability to use or purchase DNS-related services, has been affected by ICANN's jurisdiction in any way?
If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents.
2. Are you aware of any instance in which ICANN's jurisdiction affected any dispute resolution process or litigation related to domain names?
If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents.
Mike Rodenbaugh RODENBAUGH LAW tel/fax: +1.415.738.8087 http://rodenbaugh.com
On Wed, Nov 23, 2016 at 6:47 AM, Mueller, Milton L <milton@gatech.edu <mailto:milton@gatech.edu>> wrote:
CW and I have agreed on the following draft:
*Request for stakeholder input on jurisdiction issues***
The Jurisdiction subgroup of the CCWG Accountability is asking for the community to provide factual input on the following questions:
1. Has your business, your privacy or your ability to use or purchase DNS-related services, been affected by ICANN's jurisdiction in any way?
If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents.
2. Has ICANN's jurisdiction affected any dispute resolution process or litigation related to domain names you have been involved in?
If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents.
Dr. Milton L. Mueller
Professor, School of Public Policy
Georgia Institute of Technology
_______________________________________________ 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>
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
I will like to add a general question to the below: What do you think are the problems, if any, with continued jurisdiction of the US state over ICANN, as a US non-profit? Please justify your response with appropriate examples, analysis, etc. Especially, if there are existing and past instances that highlight such problems please indicate them. parminder On Wednesday 23 November 2016 09:50 PM, Mike Rodenbaugh wrote:
These seem well-stated, except perhaps they should not be looking only for personal experience, but broaden the request to seek any experience the responder is aware of? So I suggest something like:
1. Are you aware of any instance in which anyone's business, privacy, or ability to use or purchase DNS-related services, has been affected by ICANN's jurisdiction in any way?
If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents.
2. Are you aware of any instance in which ICANN's jurisdiction affected any dispute resolution process or litigation related to domain names?
If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents.
Mike Rodenbaugh RODENBAUGH LAW tel/fax: +1.415.738.8087 http://rodenbaugh.com
On Wed, Nov 23, 2016 at 6:47 AM, Mueller, Milton L <milton@gatech.edu <mailto:milton@gatech.edu>> wrote:
CW and I have agreed on the following draft:
*Request for stakeholder input on jurisdiction issues***
The Jurisdiction subgroup of the CCWG Accountability is asking for the community to provide factual input on the following questions:
1. Has your business, your privacy or your ability to use or purchase DNS-related services, been affected by ICANN's jurisdiction in any way?
If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents.
2. Has ICANN's jurisdiction affected any dispute resolution process or litigation related to domain names you have been involved in?
If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents.
Dr. Milton L. Mueller
Professor, School of Public Policy
Georgia Institute of Technology
_______________________________________________ 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>
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
Sorry, Parminder, I see this as a request for opinions, not facts. The whole point of this exercise is to gain specific factual cases that show actual issues, not to provide people with an excuse to complain about what the "think are the problems." I would reject adding such a question to the list From: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of parminder Sent: Wednesday, November 23, 2016 11:54 PM To: ws2-jurisdiction@icann.org Subject: Re: [Ws2-jurisdiction] first draft of fact solicitation questions I will like to add a general question to the below: What do you think are the problems, if any, with continued jurisdiction of the US state over ICANN, as a US non-profit? Please justify your response with appropriate examples, analysis, etc. Especially, if there are existing and past instances that highlight such problems please indicate them. parminder On Wednesday 23 November 2016 09:50 PM, Mike Rodenbaugh wrote: These seem well-stated, except perhaps they should not be looking only for personal experience, but broaden the request to seek any experience the responder is aware of? So I suggest something like: 1. Are you aware of any instance in which anyone's business, privacy, or ability to use or purchase DNS-related services, has been affected by ICANN's jurisdiction in any way? If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents. 2. Are you aware of any instance in which ICANN's jurisdiction affected any dispute resolution process or litigation related to domain names? If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents. Mike Rodenbaugh RODENBAUGH LAW tel/fax: +1.415.738.8087 http://rodenbaugh.com On Wed, Nov 23, 2016 at 6:47 AM, Mueller, Milton L <milton@gatech.edu<mailto:milton@gatech.edu>> wrote: CW and I have agreed on the following draft: Request for stakeholder input on jurisdiction issues The Jurisdiction subgroup of the CCWG Accountability is asking for the community to provide factual input on the following questions: 1. Has your business, your privacy or your ability to use or purchase DNS-related services, been affected by ICANN's jurisdiction in any way? If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents. 2. Has ICANN's jurisdiction affected any dispute resolution process or litigation related to domain names you have been involved in? If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents. Dr. Milton L. Mueller Professor, School of Public Policy Georgia Institute of Technology _______________________________________________ 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
Dear Milton THESE ARE DRAFT QUESTIONS WHICH MUST BE DISCUSSED AT sub group and APPROVED BY CCWG. No single or any little group are maters of others . We are equal and free to suggest any thing that we think appropriate . We are not here to directly or indirectly defend or offend any specific arrangements We must work together in a collaborative manner Regards Kavouss 2016-11-26 9:25 GMT+01:00 Mueller, Milton L <milton@gatech.edu>:
Sorry, Parminder, I see this as a request for opinions, not facts. The whole point of this exercise is to gain specific factual cases that show actual issues, not to provide people with an excuse to complain about what the “think are the problems.” I would reject adding such a question to the list
*From:* ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction- bounces@icann.org] *On Behalf Of *parminder *Sent:* Wednesday, November 23, 2016 11:54 PM *To:* ws2-jurisdiction@icann.org *Subject:* Re: [Ws2-jurisdiction] first draft of fact solicitation questions
I will like to add a general question to the below:
What do you think are the problems, if any, with continued jurisdiction of the US state over ICANN, as a US non-profit? Please justify your response with appropriate examples, analysis, etc. Especially, if there are existing and past instances that highlight such problems please indicate them.
parminder
On Wednesday 23 November 2016 09:50 PM, Mike Rodenbaugh wrote:
These seem well-stated, except perhaps they should not be looking only for personal experience, but broaden the request to seek any experience the responder is aware of? So I suggest something like:
1. Are you aware of any instance in which anyone's business, privacy, or ability to use or purchase DNS-related services, has been affected by ICANN's jurisdiction in any way?
If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents.
2. Are you aware of any instance in which ICANN's jurisdiction affected any dispute resolution process or litigation related to domain names?
If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents.
Mike Rodenbaugh
RODENBAUGH LAW
tel/fax: +1.415.738.8087
On Wed, Nov 23, 2016 at 6:47 AM, Mueller, Milton L <milton@gatech.edu> wrote:
CW and I have agreed on the following draft:
*Request for stakeholder input on jurisdiction issues*
The Jurisdiction subgroup of the CCWG Accountability is asking for the community to provide factual input on the following questions:
1. Has your business, your privacy or your ability to use or purchase DNS-related services, been affected by ICANN's jurisdiction in any way?
If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents.
2. Has ICANN's jurisdiction affected any dispute resolution process or litigation related to domain names you have been involved in?
If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents.
Dr. Milton L. Mueller
Professor, School of Public Policy
Georgia Institute of Technology
_______________________________________________ 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
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
On Saturday 26 November 2016 01:55 PM, Mueller, Milton L wrote:
Sorry, Parminder, I see this as a request for opinions, not facts. The whole point of this exercise is to gain specific factual cases that show actual issues, not to provide people with an excuse to complain about what the “think are the problems.” I would reject adding such a question to the list
Milton, you probably mean, you are against adding such a question :). I dont see you have any authority to reject anything any more than I have to reject your original formulation. Was not the community accountability mechanism instituted just on the basis of "what people think are the problems"? I saw no efforts to gather facts with surveys like "1. Are you aware of any instance in which anyone's business, privacy, or ability to use or purchase DNS-related services, has been affected by absence of a community accountability mechanism ? If any such known 'facts' exist I am unaware of them and will like to know. In case of the question of ICANN's jurisdiction of incorporation analytical facts are rather more evident, as raised in the civil society statement. The process we employ can lead towards certain kind of outcomes rather than others. And I see this particular process being aimed at foreclosing the jurisdiction of incorporation question. This is fact the "application of public laws question" because immunity from such application can be obtained even without changing ICANN's place of jurisdiction. Meaning ICANN can stay incorporated as US non profit in California, and it exempted from application form various public laws as per the US immunity act that I cited. I also said that, as far as I can understand, it is possible to keep the private disputes arising from ICANN's organisational system, including those about enforcement of community powers, to be subject to US/ Californian law, strictly only for such dispute resolution as per ICANN bylaws. We need to hear from this group why this is not possible or not preferred... parminder
*From:*ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] *On Behalf Of *parminder *Sent:* Wednesday, November 23, 2016 11:54 PM *To:* ws2-jurisdiction@icann.org *Subject:* Re: [Ws2-jurisdiction] first draft of fact solicitation questions
I will like to add a general question to the below:
What do you think are the problems, if any, with continued jurisdiction of the US state over ICANN, as a US non-profit? Please justify your response with appropriate examples, analysis, etc. Especially, if there are existing and past instances that highlight such problems please indicate them.
parminder
On Wednesday 23 November 2016 09:50 PM, Mike Rodenbaugh wrote:
These seem well-stated, except perhaps they should not be looking only for personal experience, but broaden the request to seek any experience the responder is aware of? So I suggest something like:
1. Are you aware of any instance in which anyone's business, privacy, or ability to use or purchase DNS-related services, has been affected by ICANN's jurisdiction in any way?
If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents.
2. Are you aware of any instance in which ICANN's jurisdiction affected any dispute resolution process or litigation related to domain names?
If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents.
Mike Rodenbaugh
RODENBAUGH LAW
tel/fax: +1.415.738.8087
On Wed, Nov 23, 2016 at 6:47 AM, Mueller, Milton L <milton@gatech.edu <mailto:milton@gatech.edu>> wrote:
CW and I have agreed on the following draft:
*Request for stakeholder input on jurisdiction issues*
The Jurisdiction subgroup of the CCWG Accountability is asking for the community to provide factual input on the following questions:
1. Has your business, your privacy or your ability to use or purchase DNS-related services, been affected by ICANN's jurisdiction in any way?
If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents.
2. Has ICANN's jurisdiction affected any dispute resolution process or litigation related to domain names you have been involved in?
If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents.
Dr. Milton L. Mueller
Professor, School of Public Policy
Georgia Institute of Technology
_______________________________________________ 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>
Hi, I am among those who would like to see a question included along the lines Parminder suggests. It should, however, be made by specific reference to existing laws that could be used to interfere with ICANN's ability to provide service to customers in other countries. While I strongly support keeping the incorporation in CA in the US because the yet to tested accountability process depends on that, I also support an effort to look for immunity from laws that affect ICANN ability to serve clients internationally - be they governments, companies or individuals. This immunity should be restricted to ICANN performance of its mission in relation to international entities and _not_ relate to contract law, labor law or local ordinances on garbage pickup. I do not think that this immunity can be gained in the WS2 timeframe, but I do believe that WS2 could initiate yet another CCWG effort to work on that, if the consensus of the group were to do so. But first we need more of the background information, the so-called facts. We have to remember that with NTIA oversight, the application of some laws may have been different than it might be going forward. We need to understand whether that is the case or not, and whether there are laws that could now be applied to ICANN's activities that were not applied before. avri On 26-Nov-16 05:08, parminder wrote:
On Saturday 26 November 2016 01:55 PM, Mueller, Milton L wrote:
Sorry, Parminder, I see this as a request for opinions, not facts. The whole point of this exercise is to gain specific factual cases that show actual issues, not to provide people with an excuse to complain about what the “think are the problems.” I would reject adding such a question to the list
Milton, you probably mean, you are against adding such a question :). I dont see you have any authority to reject anything any more than I have to reject your original formulation.
Was not the community accountability mechanism instituted just on the basis of "what people think are the problems"? I saw no efforts to gather facts with surveys like
"1. Are you aware of any instance in which anyone's business, privacy, or ability to use or purchase DNS-related services, has been affected by absence of a community accountability mechanism ?
If any such known 'facts' exist I am unaware of them and will like to know.
In case of the question of ICANN's jurisdiction of incorporation analytical facts are rather more evident, as raised in the civil society statement.
The process we employ can lead towards certain kind of outcomes rather than others. And I see this particular process being aimed at foreclosing the jurisdiction of incorporation question. This is fact the "application of public laws question" because immunity from such application can be obtained even without changing ICANN's place of jurisdiction.
Meaning ICANN can stay incorporated as US non profit in California, and it exempted from application form various public laws as per the US immunity act that I cited. I also said that, as far as I can understand, it is possible to keep the private disputes arising from ICANN's organisational system, including those about enforcement of community powers, to be subject to US/ Californian law, strictly only for such dispute resolution as per ICANN bylaws. We need to hear from this group why this is not possible or not preferred...
parminder
*From:*ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] *On Behalf Of *parminder *Sent:* Wednesday, November 23, 2016 11:54 PM *To:* ws2-jurisdiction@icann.org *Subject:* Re: [Ws2-jurisdiction] first draft of fact solicitation questions
I will like to add a general question to the below:
What do you think are the problems, if any, with continued jurisdiction of the US state over ICANN, as a US non-profit? Please justify your response with appropriate examples, analysis, etc. Especially, if there are existing and past instances that highlight such problems please indicate them.
parminder
On Wednesday 23 November 2016 09:50 PM, Mike Rodenbaugh wrote:
These seem well-stated, except perhaps they should not be looking only for personal experience, but broaden the request to seek any experience the responder is aware of? So I suggest something like:
1. Are you aware of any instance in which anyone's business, privacy, or ability to use or purchase DNS-related services, has been affected by ICANN's jurisdiction in any way?
If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents.
2. Are you aware of any instance in which ICANN's jurisdiction affected any dispute resolution process or litigation related to domain names?
If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents.
Mike Rodenbaugh
RODENBAUGH LAW
tel/fax: +1.415.738.8087
On Wed, Nov 23, 2016 at 6:47 AM, Mueller, Milton L <milton@gatech.edu <mailto:milton@gatech.edu>> wrote:
CW and I have agreed on the following draft:
*Request for stakeholder input on jurisdiction issues*
The Jurisdiction subgroup of the CCWG Accountability is asking for the community to provide factual input on the following questions:
1. Has your business, your privacy or your ability to use or purchase DNS-related services, been affected by ICANN's jurisdiction in any way?
If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents.
2. Has ICANN's jurisdiction affected any dispute resolution process or litigation related to domain names you have been involved in?
If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents.
Dr. Milton L. Mueller
Professor, School of Public Policy
Georgia Institute of Technology
_______________________________________________ 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>
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
--- This email has been checked for viruses by Avast antivirus software. https://www.avast.com/antivirus
-----Original Message-----
While I strongly support keeping the incorporation in CA in the US because the yet to tested accountability process depends on that, I also support an effort to look for immunity from laws that affect ICANN ability to serve clients internationally - be they governments, companies or individuals. This immunity should be restricted to ICANN performance of its mission in relation to international entities and _not_ relate to contract law, labor law or local ordinances on garbage pickup.
I don't object to "efforts to look for immunity from laws that affect ICANN's ability to serve clients internationally." I just don't think modifying the current questions is the right way to go about that. You are mixing up two distinct efforts. One is an attempt to gather facts and cases about real, existing issues. The other is an attempt to erect new safeguards to guard against possible but hypothetical problems. The hypotheticals can be discussed and developed within the jurisdiction subgroup, there is no need to circulate questions about them. If you mix those two things up you will undermine and possibly destroy the value of the first, and possibly both, because it will not be clear what we are asking people. So, please, keep our questions focused and clear, and pursue other agendas in other ways. --MM
I do not think that this immunity can be gained in the WS2 timeframe, but I do believe that WS2 could initiate yet another CCWG effort to work on that, if the consensus of the group were to do so.
But first we need more of the background information, the so-called facts. We have to remember that with NTIA oversight, the application of some laws may have been different than it might be going forward. We need to understand whether that is the case or not, and whether there are laws that could now be applied to ICANN's activities that were not applied before.
avri
On 26-Nov-16 05:08, parminder wrote:
On Saturday 26 November 2016 01:55 PM, Mueller, Milton L wrote:
Sorry, Parminder, I see this as a request for opinions, not facts. The whole point of this exercise is to gain specific factual cases that show actual issues, not to provide people with an excuse to complain about what the "think are the problems." I would reject adding such a question to the list
Milton, you probably mean, you are against adding such a question :). I dont see you have any authority to reject anything any more than I have to reject your original formulation.
Was not the community accountability mechanism instituted just on the basis of "what people think are the problems"? I saw no efforts to gather facts with surveys like
"1. Are you aware of any instance in which anyone's business, privacy, or ability to use or purchase DNS-related services, has been affected by absence of a community accountability mechanism ?
If any such known 'facts' exist I am unaware of them and will like to know.
In case of the question of ICANN's jurisdiction of incorporation analytical facts are rather more evident, as raised in the civil society statement.
The process we employ can lead towards certain kind of outcomes rather than others. And I see this particular process being aimed at foreclosing the jurisdiction of incorporation question. This is fact the "application of public laws question" because immunity from such application can be obtained even without changing ICANN's place of jurisdiction.
Meaning ICANN can stay incorporated as US non profit in California, and it exempted from application form various public laws as per the US immunity act that I cited. I also said that, as far as I can understand, it is possible to keep the private disputes arising from ICANN's organisational system, including those about enforcement of community powers, to be subject to US/ Californian law, strictly only for such dispute resolution as per ICANN bylaws. We need to hear from this group why this is not possible or not preferred...
parminder
*From:*ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] *On Behalf Of *parminder *Sent:* Wednesday, November 23, 2016 11:54 PM *To:* ws2-jurisdiction@icann.org *Subject:* Re: [Ws2-jurisdiction] first draft of fact solicitation questions
I will like to add a general question to the below:
What do you think are the problems, if any, with continued jurisdiction of the US state over ICANN, as a US non-profit? Please justify your response with appropriate examples, analysis, etc. Especially, if there are existing and past instances that highlight such problems please indicate them.
parminder
On Wednesday 23 November 2016 09:50 PM, Mike Rodenbaugh wrote:
These seem well-stated, except perhaps they should not be looking only for personal experience, but broaden the request to seek any experience the responder is aware of? So I suggest something like:
1. Are you aware of any instance in which anyone's business, privacy, or ability to use or purchase DNS-related services, has been affected by ICANN's jurisdiction in any way?
If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents.
2. Are you aware of any instance in which ICANN's jurisdiction affected any dispute resolution process or litigation related to domain names?
If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents.
Mike Rodenbaugh
RODENBAUGH LAW
tel/fax: +1.415.738.8087
On Wed, Nov 23, 2016 at 6:47 AM, Mueller, Milton L <milton@gatech.edu <mailto:milton@gatech.edu>> wrote:
CW and I have agreed on the following draft:
*Request for stakeholder input on jurisdiction issues*
The Jurisdiction subgroup of the CCWG Accountability is asking for the community to provide factual input on the following questions:
1. Has your business, your privacy or your ability to use or purchase DNS-related services, been affected by ICANN's jurisdiction in any way?
If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents.
2. Has ICANN's jurisdiction affected any dispute resolution process or litigation related to domain names you have been involved in?
If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents.
Dr. Milton L. Mueller
Professor, School of Public Policy
Georgia Institute of Technology
_______________________________________________ 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>
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
--- This email has been checked for viruses by Avast antivirus software. https://www.avast.com/antivirus
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
Hi, But you ignored my first and last paragraph that dealt with your survey questions: It should, however, be made by specific reference to existing laws that could be used to interfere with ICANN's ability to provide service to customers in other countries. .... But first we need more of the background information, the so-called facts. We have to remember that with NTIA oversight, the application of some laws may have been different than it might be going forward. We need to understand whether that is the case or not, and whether there are laws that could now be applied to ICANN's activities that were not applied before. In other words my answer also addressed the need for a further question that does relate to real and existing issues, just going beyond ones with a previous case history. avri On 26-Nov-16 11:37, Mueller, Milton L wrote:
-----Original Message-----
While I strongly support keeping the incorporation in CA in the US because the yet to tested accountability process depends on that, I also support an effort to look for immunity from laws that affect ICANN ability to serve clients internationally - be they governments, companies or individuals. This immunity should be restricted to ICANN performance of its mission in relation to international entities and _not_ relate to contract law, labor law or local ordinances on garbage pickup. I don't object to "efforts to look for immunity from laws that affect ICANN's ability to serve clients internationally." I just don't think modifying the current questions is the right way to go about that. You are mixing up two distinct efforts. One is an attempt to gather facts and cases about real, existing issues. The other is an attempt to erect new safeguards to guard against possible but hypothetical problems. The hypotheticals can be discussed and developed within the jurisdiction subgroup, there is no need to circulate questions about them.
If you mix those two things up you will undermine and possibly destroy the value of the first, and possibly both, because it will not be clear what we are asking people. So, please, keep our questions focused and clear, and pursue other agendas in other ways.
--MM
I do not think that this immunity can be gained in the WS2 timeframe, but I do believe that WS2 could initiate yet another CCWG effort to work on that, if the consensus of the group were to do so.
But first we need more of the background information, the so-called facts. We have to remember that with NTIA oversight, the application of some laws may have been different than it might be going forward. We need to understand whether that is the case or not, and whether there are laws that could now be applied to ICANN's activities that were not applied before.
avri
On 26-Nov-16 05:08, parminder wrote:
On Saturday 26 November 2016 01:55 PM, Mueller, Milton L wrote:
Sorry, Parminder, I see this as a request for opinions, not facts. The whole point of this exercise is to gain specific factual cases that show actual issues, not to provide people with an excuse to complain about what the "think are the problems." I would reject adding such a question to the list
Milton, you probably mean, you are against adding such a question :). I dont see you have any authority to reject anything any more than I have to reject your original formulation.
Was not the community accountability mechanism instituted just on the basis of "what people think are the problems"? I saw no efforts to gather facts with surveys like
"1. Are you aware of any instance in which anyone's business, privacy, or ability to use or purchase DNS-related services, has been affected by absence of a community accountability mechanism ?
If any such known 'facts' exist I am unaware of them and will like to know.
In case of the question of ICANN's jurisdiction of incorporation analytical facts are rather more evident, as raised in the civil society statement.
The process we employ can lead towards certain kind of outcomes rather than others. And I see this particular process being aimed at foreclosing the jurisdiction of incorporation question. This is fact the "application of public laws question" because immunity from such application can be obtained even without changing ICANN's place of jurisdiction.
Meaning ICANN can stay incorporated as US non profit in California, and it exempted from application form various public laws as per the US immunity act that I cited. I also said that, as far as I can understand, it is possible to keep the private disputes arising from ICANN's organisational system, including those about enforcement of community powers, to be subject to US/ Californian law, strictly only for such dispute resolution as per ICANN bylaws. We need to hear from this group why this is not possible or not preferred...
parminder
*From:*ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] *On Behalf Of *parminder *Sent:* Wednesday, November 23, 2016 11:54 PM *To:* ws2-jurisdiction@icann.org *Subject:* Re: [Ws2-jurisdiction] first draft of fact solicitation questions
I will like to add a general question to the below:
What do you think are the problems, if any, with continued jurisdiction of the US state over ICANN, as a US non-profit? Please justify your response with appropriate examples, analysis, etc. Especially, if there are existing and past instances that highlight such problems please indicate them.
parminder
On Wednesday 23 November 2016 09:50 PM, Mike Rodenbaugh wrote:
These seem well-stated, except perhaps they should not be looking only for personal experience, but broaden the request to seek any experience the responder is aware of? So I suggest something like:
1. Are you aware of any instance in which anyone's business, privacy, or ability to use or purchase DNS-related services, has been affected by ICANN's jurisdiction in any way?
If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents.
2. Are you aware of any instance in which ICANN's jurisdiction affected any dispute resolution process or litigation related to domain names?
If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents.
Mike Rodenbaugh
RODENBAUGH LAW
tel/fax: +1.415.738.8087
On Wed, Nov 23, 2016 at 6:47 AM, Mueller, Milton L <milton@gatech.edu <mailto:milton@gatech.edu>> wrote:
CW and I have agreed on the following draft:
*Request for stakeholder input on jurisdiction issues*
The Jurisdiction subgroup of the CCWG Accountability is asking for the community to provide factual input on the following questions:
1. Has your business, your privacy or your ability to use or purchase DNS-related services, been affected by ICANN's jurisdiction in any way?
If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents.
2. Has ICANN's jurisdiction affected any dispute resolution process or litigation related to domain names you have been involved in?
If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents.
Dr. Milton L. Mueller
Professor, School of Public Policy
Georgia Institute of Technology
_______________________________________________ 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>
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
--- This email has been checked for viruses by Avast antivirus software. https://www.avast.com/antivirus
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
--- This email has been checked for viruses by Avast antivirus software. https://www.avast.com/antivirus
Again, I have no objection to finding out more about specific US laws that "could" be used to interfere with ICANN's ability to provide service to customers in other countries. I just don't want it to be part of the fact-finding solicitation. CW and I proposed a couple of "has happened, has affected you" questions; you are proposing a "could happen, might affect anyone" question. Both are valid, but it's a mistake to mix those two. We want to keep them very distinct. If nothing has actually happened to you and you have no specific cases to cite, you simply shouldn't respond to the factual solicitation. I don't want to see the fact-finding results complicated and polluted by a bunch of hypotheticals and opinions, which is what is sure to happen if you tack a Parminderesque question onto the other two. If you want to organize a separate, second solicitation, go ahead. Although I think that kind of speculation could easily take place on the list and by soliciting opinions from legal experts. At any rate nothing confines this group to a single solicitation. --MM
-----Original Message----- From: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction- bounces@icann.org] On Behalf Of avri doria Sent: Saturday, November 26, 2016 11:57 AM To: ws2-jurisdiction@icann.org Subject: Re: [Ws2-jurisdiction] first draft of fact solicitation questions
Hi,
But you ignored my first and last paragraph that dealt with your survey questions:
It should, however, be made by specific reference to existing laws that could be used to interfere with ICANN's ability to provide service to customers in other countries.
....
But first we need more of the background information, the so-called facts. We have to remember that with NTIA oversight, the application of some laws may have been different than it might be going forward. We need to understand whether that is the case or not, and whether there are laws that could now be applied to ICANN's activities that were not applied before.
In other words my answer also addressed the need for a further question that does relate to real and existing issues, just going beyond ones with a previous case history.
avri
On 26-Nov-16 11:37, Mueller, Milton L wrote:
-----Original Message-----
While I strongly support keeping the incorporation in CA in the US because the yet to tested accountability process depends on that, I also support an effort to look for immunity from laws that affect ICANN ability to serve clients internationally - be they governments, companies or individuals. This immunity should be restricted to ICANN performance of its mission in relation to international entities and _not_ relate to contract law, labor law or local ordinances on
garbage pickup.
I don't object to "efforts to look for immunity from laws that affect ICANN's ability to serve clients internationally." I just don't think modifying the current questions is the right way to go about that. You are mixing up two distinct efforts. One is an attempt to gather facts and cases about real, existing issues. The other is an attempt to erect new safeguards to guard against possible but hypothetical problems. The hypotheticals can be discussed and developed within the jurisdiction subgroup, there is no need to circulate questions about them.
If you mix those two things up you will undermine and possibly destroy the value of the first, and possibly both, because it will not be clear what we are asking people. So, please, keep our questions focused and clear, and pursue other agendas in other ways.
--MM
I do not think that this immunity can be gained in the WS2 timeframe, but I do believe that WS2 could initiate yet another CCWG effort to work on that, if the consensus of the group were to do so.
But first we need more of the background information, the so-called facts. We have to remember that with NTIA oversight, the application of some laws may have been different than it might be going forward. We need to understand whether that is the case or not, and whether there are laws that could now be applied to ICANN's activities that were not applied before.
avri
On 26-Nov-16 05:08, parminder wrote:
On Saturday 26 November 2016 01:55 PM, Mueller, Milton L wrote:
Sorry, Parminder, I see this as a request for opinions, not facts. The whole point of this exercise is to gain specific factual cases that show actual issues, not to provide people with an excuse to complain about what the "think are the problems." I would reject adding such a question to the list
Milton, you probably mean, you are against adding such a question :). I dont see you have any authority to reject anything any more than I have to reject your original formulation.
Was not the community accountability mechanism instituted just on the basis of "what people think are the problems"? I saw no efforts to gather facts with surveys like
"1. Are you aware of any instance in which anyone's business, privacy, or ability to use or purchase DNS-related services, has been affected by absence of a community accountability mechanism ?
If any such known 'facts' exist I am unaware of them and will like to know.
In case of the question of ICANN's jurisdiction of incorporation analytical facts are rather more evident, as raised in the civil society statement.
The process we employ can lead towards certain kind of outcomes rather than others. And I see this particular process being aimed at foreclosing the jurisdiction of incorporation question. This is fact the "application of public laws question" because immunity from such application can be obtained even without changing ICANN's place of jurisdiction.
Meaning ICANN can stay incorporated as US non profit in California, and it exempted from application form various public laws as per the US immunity act that I cited. I also said that, as far as I can understand, it is possible to keep the private disputes arising from ICANN's organisational system, including those about enforcement of community powers, to be subject to US/ Californian law, strictly only for such dispute resolution as per ICANN bylaws. We need to hear from this group why this is not possible or not preferred...
parminder
*From:*ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] *On Behalf Of *parminder *Sent:* Wednesday, November 23, 2016 11:54 PM *To:* ws2-jurisdiction@icann.org *Subject:* Re: [Ws2-jurisdiction] first draft of fact solicitation questions
I will like to add a general question to the below:
What do you think are the problems, if any, with continued jurisdiction of the US state over ICANN, as a US non-profit? Please justify your response with appropriate examples, analysis, etc. Especially, if there are existing and past instances that highlight such problems please indicate them.
parminder
On Wednesday 23 November 2016 09:50 PM, Mike Rodenbaugh wrote:
These seem well-stated, except perhaps they should not be looking only for personal experience, but broaden the request to seek any experience the responder is aware of? So I suggest something like:
1. Are you aware of any instance in which anyone's business, privacy, or ability to use or purchase DNS-related services, has been affected by ICANN's jurisdiction in any way?
If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents.
2. Are you aware of any instance in which ICANN's jurisdiction affected any dispute resolution process or litigation related to domain names?
If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents.
Mike Rodenbaugh
RODENBAUGH LAW
tel/fax: +1.415.738.8087
On Wed, Nov 23, 2016 at 6:47 AM, Mueller, Milton L <milton@gatech.edu <mailto:milton@gatech.edu>> wrote:
CW and I have agreed on the following draft:
*Request for stakeholder input on jurisdiction issues*
The Jurisdiction subgroup of the CCWG Accountability is asking for the community to provide factual input on the following questions:
1. Has your business, your privacy or your ability to use or purchase DNS-related services, been affected by ICANN's jurisdiction in any way?
If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents.
2. Has ICANN's jurisdiction affected any dispute resolution process or litigation related to domain names you have been involved in?
If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents.
Dr. Milton L. Mueller
Professor, School of Public Policy
Georgia Institute of Technology
_______________________________________________ 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>
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
--- This email has been checked for viruses by Avast antivirus software. https://www.avast.com/antivirus
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
--- This email has been checked for viruses by Avast antivirus software. https://www.avast.com/antivirus
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
Dear All, The issue raised by Parminder and to s'omettent by Avri is valid We have many other questions to raise among which is how we could put ICANN also under Public Law which is currently exempted under UA Acts of Immunity. We are dealing with Global multistakeholder and NOT American multistakeholder Regards Kavouss 2016-11-26 19:33 GMT+01:00 Mueller, Milton L <milton@gatech.edu>:
Again, I have no objection to finding out more about specific US laws that "could" be used to interfere with ICANN's ability to provide service to customers in other countries. I just don't want it to be part of the fact-finding solicitation.
CW and I proposed a couple of "has happened, has affected you" questions; you are proposing a "could happen, might affect anyone" question. Both are valid, but it's a mistake to mix those two. We want to keep them very distinct. If nothing has actually happened to you and you have no specific cases to cite, you simply shouldn't respond to the factual solicitation. I don't want to see the fact-finding results complicated and polluted by a bunch of hypotheticals and opinions, which is what is sure to happen if you tack a Parminderesque question onto the other two.
If you want to organize a separate, second solicitation, go ahead. Although I think that kind of speculation could easily take place on the list and by soliciting opinions from legal experts. At any rate nothing confines this group to a single solicitation.
--MM
-----Original Message----- From: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction- bounces@icann.org] On Behalf Of avri doria Sent: Saturday, November 26, 2016 11:57 AM To: ws2-jurisdiction@icann.org Subject: Re: [Ws2-jurisdiction] first draft of fact solicitation questions
Hi,
But you ignored my first and last paragraph that dealt with your survey questions:
It should, however, be made by specific reference to existing laws that could be used to interfere with ICANN's ability to provide service to customers in other countries.
....
But first we need more of the background information, the so-called facts. We have to remember that with NTIA oversight, the application of some laws may have been different than it might be going forward. We need to understand whether that is the case or not, and whether there are laws that could now be applied to ICANN's activities that were not applied before.
In other words my answer also addressed the need for a further question that does relate to real and existing issues, just going beyond ones with a previous case history.
avri
On 26-Nov-16 11:37, Mueller, Milton L wrote:
-----Original Message-----
While I strongly support keeping the incorporation in CA in the US because the yet to tested accountability process depends on that, I also support an effort to look for immunity from laws that affect ICANN ability to serve clients internationally - be they governments, companies or individuals. This immunity should be restricted to ICANN performance of its mission in relation to international entities and _not_ relate to contract law, labor law or local
ordinances on garbage pickup.
I don't object to "efforts to look for immunity from laws that affect ICANN's ability to serve clients internationally." I just don't think modifying the current questions is the right way to go about that. You are mixing up two distinct efforts. One is an attempt to gather facts and cases about real, existing issues. The other is an attempt to erect new safeguards to guard against possible but hypothetical problems. The hypotheticals can be discussed and developed within the jurisdiction subgroup, there is no need to circulate questions about them.
If you mix those two things up you will undermine and possibly destroy the value of the first, and possibly both, because it will not be clear what we are asking people. So, please, keep our questions focused and clear, and pursue other agendas in other ways.
--MM
I do not think that this immunity can be gained in the WS2 timeframe, but I do believe that WS2 could initiate yet another CCWG effort to work on that, if the consensus of the group were to do so.
But first we need more of the background information, the so-called facts. We have to remember that with NTIA oversight, the application of some laws may have been different than it might be going forward. We need to understand whether that is the case or not, and whether there are laws that could now be applied to ICANN's activities that were not applied before.
avri
On 26-Nov-16 05:08, parminder wrote:
On Saturday 26 November 2016 01:55 PM, Mueller, Milton L wrote:
Sorry, Parminder, I see this as a request for opinions, not facts. The whole point of this exercise is to gain specific factual cases that show actual issues, not to provide people with an excuse to complain about what the "think are the problems." I would reject adding such a question to the list
Milton, you probably mean, you are against adding such a question
:).
I dont see you have any authority to reject anything any more than I have to reject your original formulation.
Was not the community accountability mechanism instituted just on the basis of "what people think are the problems"? I saw no efforts to gather facts with surveys like
"1. Are you aware of any instance in which anyone's business, privacy, or ability to use or purchase DNS-related services, has been affected by absence of a community accountability mechanism ?
If any such known 'facts' exist I am unaware of them and will like to know.
In case of the question of ICANN's jurisdiction of incorporation analytical facts are rather more evident, as raised in the civil society statement.
The process we employ can lead towards certain kind of outcomes rather than others. And I see this particular process being aimed at foreclosing the jurisdiction of incorporation question. This is fact the "application of public laws question" because immunity from such application can be obtained even without changing ICANN's place of jurisdiction.
Meaning ICANN can stay incorporated as US non profit in California, and it exempted from application form various public laws as per the US immunity act that I cited. I also said that, as far as I can understand, it is possible to keep the private disputes arising from ICANN's organisational system, including those about enforcement of community powers, to be subject to US/ Californian law, strictly only for such dispute resolution as per ICANN bylaws. We need to hear from this group why this is not possible or not preferred...
parminder
*From:*ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] *On Behalf Of *parminder *Sent:* Wednesday, November 23, 2016 11:54 PM *To:* ws2-jurisdiction@icann.org *Subject:* Re: [Ws2-jurisdiction] first draft of fact solicitation questions
I will like to add a general question to the below:
What do you think are the problems, if any, with continued jurisdiction of the US state over ICANN, as a US non-profit? Please justify your response with appropriate examples, analysis, etc. Especially, if there are existing and past instances that highlight such problems please indicate them.
parminder
On Wednesday 23 November 2016 09:50 PM, Mike Rodenbaugh wrote:
These seem well-stated, except perhaps they should not be
looking
only for personal experience, but broaden the request to seek
any
experience the responder is aware of? So I suggest something
like:
1. Are you aware of any instance in which anyone's business, privacy, or ability to use or purchase DNS-related services, has been affected by ICANN's jurisdiction in any way?
If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links
to
any relevant documents.
2. Are you aware of any instance in which ICANN's jurisdiction affected any dispute resolution process or litigation related to domain names?
If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links
to
any relevant documents.
Mike Rodenbaugh
RODENBAUGH LAW
tel/fax: +1.415.738.8087
On Wed, Nov 23, 2016 at 6:47 AM, Mueller, Milton L <milton@gatech.edu <mailto:milton@gatech.edu>> wrote:
CW and I have agreed on the following draft:
*Request for stakeholder input on jurisdiction issues*
The Jurisdiction subgroup of the CCWG Accountability is asking for the community to provide factual input on the following questions:
1. Has your business, your privacy or your ability to use or purchase DNS-related services, been affected by ICANN's jurisdiction in any way?
If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents.
2. Has ICANN's jurisdiction affected any dispute resolution process or litigation related to domain names you have been involved in?
If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents.
Dr. Milton L. Mueller
Professor, School of Public Policy
Georgia Institute of Technology
_______________________________________________ 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>
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
--- This email has been checked for viruses by Avast antivirus software. https://www.avast.com/antivirus
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
--- This email has been checked for viruses by Avast antivirus software. https://www.avast.com/antivirus
_______________________________________________ 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
On Saturday 26 November 2016 10:07 PM, Mueller, Milton L wrote:
I don't object to "efforts to look for immunity from laws that affect ICANN's ability to serve clients internationally." I just don't think modifying the current questions is the right way to go about that. You are mixing up two distinct efforts. One is an attempt to gather facts and cases about real, existing issues. The other is an attempt to erect new safeguards to guard against possible but hypothetical problems. The hypotheticals can be discussed and developed within the jurisdiction subgroup, there is no need to circulate questions about them.
If you mix those two things up you will undermine and possibly destroy the value of the first, and possibly both, because it will not be clear what we are asking people. So, please, keep our questions focused and clear, and pursue other agendas in other ways.
Let both kinds of agendas be pursued in the say way, or equal opportunity be given to both .... We can have a questionnaire in two parts, and in any case, the nature of the question will make very clear what is being sought by which question. p
--MM
I do not think that this immunity can be gained in the WS2 timeframe, but I do believe that WS2 could initiate yet another CCWG effort to work on that, if the consensus of the group were to do so.
But first we need more of the background information, the so-called facts. We have to remember that with NTIA oversight, the application of some laws may have been different than it might be going forward. We need to understand whether that is the case or not, and whether there are laws that could now be applied to ICANN's activities that were not applied before.
avri
On 26-Nov-16 05:08, parminder wrote:
On Saturday 26 November 2016 01:55 PM, Mueller, Milton L wrote:
Sorry, Parminder, I see this as a request for opinions, not facts. The whole point of this exercise is to gain specific factual cases that show actual issues, not to provide people with an excuse to complain about what the "think are the problems." I would reject adding such a question to the list
Milton, you probably mean, you are against adding such a question :). I dont see you have any authority to reject anything any more than I have to reject your original formulation.
Was not the community accountability mechanism instituted just on the basis of "what people think are the problems"? I saw no efforts to gather facts with surveys like
"1. Are you aware of any instance in which anyone's business, privacy, or ability to use or purchase DNS-related services, has been affected by absence of a community accountability mechanism ?
If any such known 'facts' exist I am unaware of them and will like to know.
In case of the question of ICANN's jurisdiction of incorporation analytical facts are rather more evident, as raised in the civil society statement.
The process we employ can lead towards certain kind of outcomes rather than others. And I see this particular process being aimed at foreclosing the jurisdiction of incorporation question. This is fact the "application of public laws question" because immunity from such application can be obtained even without changing ICANN's place of jurisdiction.
Meaning ICANN can stay incorporated as US non profit in California, and it exempted from application form various public laws as per the US immunity act that I cited. I also said that, as far as I can understand, it is possible to keep the private disputes arising from ICANN's organisational system, including those about enforcement of community powers, to be subject to US/ Californian law, strictly only for such dispute resolution as per ICANN bylaws. We need to hear from this group why this is not possible or not preferred...
parminder
*From:*ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] *On Behalf Of *parminder *Sent:* Wednesday, November 23, 2016 11:54 PM *To:* ws2-jurisdiction@icann.org *Subject:* Re: [Ws2-jurisdiction] first draft of fact solicitation questions
I will like to add a general question to the below:
What do you think are the problems, if any, with continued jurisdiction of the US state over ICANN, as a US non-profit? Please justify your response with appropriate examples, analysis, etc. Especially, if there are existing and past instances that highlight such problems please indicate them.
parminder
On Wednesday 23 November 2016 09:50 PM, Mike Rodenbaugh wrote:
These seem well-stated, except perhaps they should not be looking only for personal experience, but broaden the request to seek any experience the responder is aware of? So I suggest something like:
1. Are you aware of any instance in which anyone's business, privacy, or ability to use or purchase DNS-related services, has been affected by ICANN's jurisdiction in any way?
If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents.
2. Are you aware of any instance in which ICANN's jurisdiction affected any dispute resolution process or litigation related to domain names?
If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents.
Mike Rodenbaugh
RODENBAUGH LAW
tel/fax: +1.415.738.8087
On Wed, Nov 23, 2016 at 6:47 AM, Mueller, Milton L <milton@gatech.edu <mailto:milton@gatech.edu>> wrote:
CW and I have agreed on the following draft:
*Request for stakeholder input on jurisdiction issues*
The Jurisdiction subgroup of the CCWG Accountability is asking for the community to provide factual input on the following questions:
1. Has your business, your privacy or your ability to use or purchase DNS-related services, been affected by ICANN's jurisdiction in any way?
If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents.
2. Has ICANN's jurisdiction affected any dispute resolution process or litigation related to domain names you have been involved in?
If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents.
Dr. Milton L. Mueller
Professor, School of Public Policy
Georgia Institute of Technology
_______________________________________________ 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>
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
--- This email has been checked for viruses by Avast antivirus software. https://www.avast.com/antivirus
_______________________________________________ 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
All, This discussion has ranged well beyond the current stage of our work and potentially beyond the scope of this subgroup; we need to refocus. After we "froze" the working documents prior to Hyderabad, the rapporteurs decided to allow the mailing list to "run free" for a while, without regard to our work plan, the active work we're engaged in, or the scope and remit of this subgroup. However, neither this subgroup or this mailing list is intended to be a general discussion of anything related to "ICANN" and "jurisdiction." This is a working (sub)group and this email list needs to be devoted to the work before the group. As a general reminder, the overall working method we arrived at was first to look for *issues*; after that was done, we would move on to look (if issues were identified and agreed) at potential *remedies*. To be more specific, our plan is to first identify the "influences" of the "multiple layers" of ICANN's jurisdiction(s). These influences may be positive (e.g., advantages), neutral or negative (e.g., issues). As agreed by the subgroup, we are currently discussing and trying to answer the following question *"What is the influence of ICANN’s existing jurisdiction(s) relating to resolution of disputes (i.e., choice of law and venue) on the actual operation of ICANN’s policies and accountability mechanisms?*" We have been discussing possible influences, but these have been "hypotheticals" -- proposed by members of this subgroup. However, we've noticed that we are short on information about actual occurrences. As a result, at our last meeting we decided to make a factual inquiry to seek actual experiences that people and entities have had where ICANN's current jurisdictional set-up came into play. That is where we currently stand. After we identify and agree on issues and concerns (both hypothetical and actual), our work will turn to identifying and analyzing potential remedies for the listed issues/concerns, including any potential consequences or risks associated with those remedies. As discussed, the remedies need to be directly related to, and solutions for, the identified issues/concerns. We are not up to the remedies stage in our work, and we won't be until we identify and coming to consensus on specific issues. Any discussion of remedies now is premature, and to the extent it displaces discussion of influences and issues, it's actually delaying our work. Immunity falls into the category of potential "remedies." As such, it is premature to discuss it at this stage in our work. If and when we identify issues/concerns, we can look at potential remedies. If appropriate (i.e., if it appears to be a remedy to an identified issue), we can discuss "immunity" at that time. However, now is not the time for that discussion, and we need to put that discussion aside and focus on the work that is actually in front of us. Similarly, I believe that we need to keep our fact solicitation focused as well. We are looking for actual experiences to supplement the apparently limited experiences of those in the group. When it comes to questions of opinion or speculation, that is properly the work of this subgroup, and should be part of our deliberative process. We will get further input from the CCWG plenary and then through public comment. Let's follow our work plan and focus on the task in front of us. That's how we will get through the work. Thank you. Greg Shatan co-rapporteur On Sun, Nov 27, 2016 at 1:43 AM, parminder <parminder@itforchange.net> wrote:
On Saturday 26 November 2016 10:07 PM, Mueller, Milton L wrote:
I don't object to "efforts to look for immunity from laws that affect
ICANN's ability to serve clients internationally." I just don't think modifying the current questions is the right way to go about that. You are mixing up two distinct efforts. One is an attempt to gather facts and cases about real, existing issues. The other is an attempt to erect new safeguards to guard against possible but hypothetical problems. The hypotheticals can be discussed and developed within the jurisdiction subgroup, there is no need to circulate questions about them.
If you mix those two things up you will undermine and possibly destroy
the value of the first, and possibly both, because it will not be clear what we are asking people. So, please, keep our questions focused and clear, and pursue other agendas in other ways.
Let both kinds of agendas be pursued in the say way, or equal opportunity be given to both .... We can have a questionnaire in two parts, and in any case, the nature of the question will make very clear what is being sought by which question.
p
--MM
I do not think that this immunity can be gained in the WS2 timeframe,
but I do
believe that WS2 could initiate yet another CCWG effort to work on that, if the consensus of the group were to do so.
But first we need more of the background information, the so-called facts. We have to remember that with NTIA oversight, the application of some laws may have been different than it might be going forward. We need to understand whether that is the case or not, and whether there are laws that could now be applied to ICANN's activities that were not applied before.
avri
On 26-Nov-16 05:08, parminder wrote:
On Saturday 26 November 2016 01:55 PM, Mueller, Milton L wrote:
Sorry, Parminder, I see this as a request for opinions, not facts. The whole point of this exercise is to gain specific factual cases that show actual issues, not to provide people with an excuse to complain about what the "think are the problems." I would reject adding such a question to the list
Milton, you probably mean, you are against adding such a question :). I dont see you have any authority to reject anything any more than I have to reject your original formulation.
Was not the community accountability mechanism instituted just on the basis of "what people think are the problems"? I saw no efforts to gather facts with surveys like
"1. Are you aware of any instance in which anyone's business, privacy, or ability to use or purchase DNS-related services, has been affected by absence of a community accountability mechanism ?
If any such known 'facts' exist I am unaware of them and will like to know.
In case of the question of ICANN's jurisdiction of incorporation analytical facts are rather more evident, as raised in the civil society statement.
The process we employ can lead towards certain kind of outcomes rather than others. And I see this particular process being aimed at foreclosing the jurisdiction of incorporation question. This is fact the "application of public laws question" because immunity from such application can be obtained even without changing ICANN's place of jurisdiction.
Meaning ICANN can stay incorporated as US non profit in California, and it exempted from application form various public laws as per the US immunity act that I cited. I also said that, as far as I can understand, it is possible to keep the private disputes arising from ICANN's organisational system, including those about enforcement of community powers, to be subject to US/ Californian law, strictly only for such dispute resolution as per ICANN bylaws. We need to hear from this group why this is not possible or not preferred...
parminder
*From:*ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] *On Behalf Of *parminder *Sent:* Wednesday, November 23, 2016 11:54 PM *To:* ws2-jurisdiction@icann.org *Subject:* Re: [Ws2-jurisdiction] first draft of fact solicitation questions
I will like to add a general question to the below:
What do you think are the problems, if any, with continued jurisdiction of the US state over ICANN, as a US non-profit? Please justify your response with appropriate examples, analysis, etc. Especially, if there are existing and past instances that highlight such problems please indicate them.
parminder
On Wednesday 23 November 2016 09:50 PM, Mike Rodenbaugh wrote:
These seem well-stated, except perhaps they should not be looking only for personal experience, but broaden the request to seek any experience the responder is aware of? So I suggest something
like:
1. Are you aware of any instance in which anyone's business, privacy, or ability to use or purchase DNS-related services, has been affected by ICANN's jurisdiction in any way?
If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents.
2. Are you aware of any instance in which ICANN's jurisdiction affected any dispute resolution process or litigation related to domain names?
If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents.
Mike Rodenbaugh
RODENBAUGH LAW
tel/fax: +1.415.738.8087
On Wed, Nov 23, 2016 at 6:47 AM, Mueller, Milton L <milton@gatech.edu <mailto:milton@gatech.edu>> wrote:
CW and I have agreed on the following draft:
*Request for stakeholder input on jurisdiction issues*
The Jurisdiction subgroup of the CCWG Accountability is asking for the community to provide factual input on the following questions:
1. Has your business, your privacy or your ability to use or purchase DNS-related services, been affected by ICANN's jurisdiction in any way?
If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents.
2. Has ICANN's jurisdiction affected any dispute resolution process or litigation related to domain names you have been involved in?
If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents.
Dr. Milton L. Mueller
Professor, School of Public Policy
Georgia Institute of Technology
_______________________________________________ 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>
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
--- This email has been checked for viruses by Avast antivirus software. https://www.avast.com/antivirus
_______________________________________________ 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
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
+ 1 Greg On 28/11/2016 02:12, Greg Shatan wrote:
All,
This discussion has ranged well beyond the current stage of our work and potentially beyond the scope of this subgroup; we need to refocus.
After we "froze" the working documents prior to Hyderabad, the rapporteurs decided to allow the mailing list to "run free" for a while, without regard to our work plan, the active work we're engaged in, or the scope and remit of this subgroup. However, neither this subgroup or this mailing list is intended to be a general discussion of anything related to "ICANN" and "jurisdiction." This is a working (sub)group and this email list needs to be devoted to the work before the group.
As a general reminder, the overall working method we arrived at was first to look for _issues_; after that was done, we would move on to look (if issues were identified and agreed) at potential _remedies_.
To be more specific, our plan is to first identify the "influences" of the "multiple layers" of ICANN's jurisdiction(s). These influences may be positive (e.g., advantages), neutral or negative (e.g., issues). As agreed by the subgroup, we are currently discussing and trying to answer the following question /"What is the influence of ICANN’s existing jurisdiction(s) relating to resolution of disputes (i.e., choice of law and venue) on the actual operation of ICANN’s policies and accountability mechanisms?/"
We have been discussing possible influences, but these have been "hypotheticals" -- proposed by members of this subgroup. However, we've noticed that we are short on information about actual occurrences. As a result, at our last meeting we decided to make a factual inquiry to seek actual experiences that people and entities have had where ICANN's current jurisdictional set-up came into play. That is where we currently stand.
After we identify and agree on issues and concerns (both hypothetical and actual), our work will turn to identifying and analyzing potential remedies for the listed issues/concerns, including any potential consequences or risks associated with those remedies. As discussed, the remedies need to be directly related to, and solutions for, the identified issues/concerns. We are not up to the remedies stage in our work, and we won't be until we identify and coming to consensus on specific issues. Any discussion of remedies now is premature, and to the extent it displaces discussion of influences and issues, it's actually delaying our work.
Immunity falls into the category of potential "remedies." As such, it is premature to discuss it at this stage in our work. If and when we identify issues/concerns, we can look at potential remedies. If appropriate (i.e., if it appears to be a remedy to an identified issue), we can discuss "immunity" at that time. However, now is not the time for that discussion, and we need to put that discussion aside and focus on the work that is actually in front of us.
Similarly, I believe that we need to keep our fact solicitation focused as well. We are looking for actual experiences to supplement the apparently limited experiences of those in the group. When it comes to questions of opinion or speculation, that is properly the work of this subgroup, and should be part of our deliberative process. We will get further input from the CCWG plenary and then through public comment.
Let's follow our work plan and focus on the task in front of us. That's how we will get through the work. Thank you.
Greg Shatan co-rapporteur
On Sun, Nov 27, 2016 at 1:43 AM, parminder <parminder@itforchange.net <mailto:parminder@itforchange.net>> wrote:
On Saturday 26 November 2016 10:07 PM, Mueller, Milton L wrote: > > I don't object to "efforts to look for immunity from laws that affect ICANN's ability to serve clients internationally." I just don't think modifying the current questions is the right way to go about that. You are mixing up two distinct efforts. One is an attempt to gather facts and cases about real, existing issues. The other is an attempt to erect new safeguards to guard against possible but hypothetical problems. The hypotheticals can be discussed and developed within the jurisdiction subgroup, there is no need to circulate questions about them. > > If you mix those two things up you will undermine and possibly destroy the value of the first, and possibly both, because it will not be clear what we are asking people. So, please, keep our questions focused and clear, and pursue other agendas in other ways.
Let both kinds of agendas be pursued in the say way, or equal opportunity be given to both .... We can have a questionnaire in two parts, and in any case, the nature of the question will make very clear what is being sought by which question.
p
> > --MM > >> I do not think that this immunity can be gained in the WS2 timeframe, but I do >> believe that WS2 could initiate yet another CCWG effort to work on that, if the >> consensus of the group were to do so. >> >> But first we need more of the background information, the so-called facts. We >> have to remember that with NTIA oversight, the application of some laws may >> have been different than it might be going forward. We need to understand >> whether that is the case or not, and whether there are laws that could now be >> applied to ICANN's activities that were not applied before. >> >> avri >> >> >> >> On 26-Nov-16 05:08, parminder wrote: >>> >>> >>> On Saturday 26 November 2016 01:55 PM, Mueller, Milton L wrote: >>>> Sorry, Parminder, I see this as a request for opinions, not facts. >>>> The whole point of this exercise is to gain specific factual cases >>>> that show actual issues, not to provide people with an excuse to >>>> complain about what the "think are the problems." I would reject >>>> adding such a question to the list >>>> >>> Milton, you probably mean, you are against adding such a question :). >>> I dont see you have any authority to reject anything any more than I >>> have to reject your original formulation. >>> >>> Was not the community accountability mechanism instituted just on the >>> basis of "what people think are the problems"? I saw no efforts to >>> gather facts with surveys like >>> >>> "1. Are you aware of any instance in which anyone's business, >>> privacy, or ability to use or purchase DNS-related services, has been >>> affected by absence of a community accountability mechanism ? >>> >>> If any such known 'facts' exist I am unaware of them and will like to >>> know. >>> >>> In case of the question of ICANN's jurisdiction of incorporation >>> analytical facts are rather more evident, as raised in the civil >>> society statement. >>> >>> The process we employ can lead towards certain kind of outcomes rather >>> than others. And I see this particular process being aimed at >>> foreclosing the jurisdiction of incorporation question. This is fact >>> the "application of public laws question" because immunity from such >>> application can be obtained even without changing ICANN's place of >>> jurisdiction. >>> >>> Meaning ICANN can stay incorporated as US non profit in California, >>> and it exempted from application form various public laws as per the >>> US immunity act that I cited. I also said that, as far as I can >>> understand, it is possible to keep the private disputes arising from >>> ICANN's organisational system, including those about enforcement of >>> community powers, to be subject to US/ Californian law, strictly only >>> for such dispute resolution as per ICANN bylaws. We need to hear from >>> this group why this is not possible or not preferred... >>> >>> parminder >>> >>> >>>> >>>> *From:*ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> >>>> [mailto:ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org>] *On Behalf Of *parminder >>>> *Sent:* Wednesday, November 23, 2016 11:54 PM >>>> *To:* ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> >>>> *Subject:* Re: [Ws2-jurisdiction] first draft of fact solicitation >>>> questions >>>> >>>> >>>> >>>> I will like to add a general question to the below: >>>> >>>> What do you think are the problems, if any, with continued >>>> jurisdiction of the US state over ICANN, as a US non-profit? Please >>>> justify your response with appropriate examples, analysis, etc. >>>> Especially, if there are existing and past instances that highlight >>>> such problems please indicate them. >>>> >>>> parminder >>>> >>>> >>>> >>>> On Wednesday 23 November 2016 09:50 PM, Mike Rodenbaugh wrote: >>>> >>>> These seem well-stated, except perhaps they should not be looking >>>> only for personal experience, but broaden the request to seek any >>>> experience the responder is aware of? So I suggest something like: >>>> >>>> >>>> >>>> 1. Are you aware of any instance in which anyone's >>>> business, privacy, or ability to use or purchase DNS-related >>>> services, has been affected by ICANN's jurisdiction in any way? >>>> >>>> If the answer is Yes, please describe specific cases or >>>> incidents, including the date, the parties involved, and links to >>>> any relevant documents. >>>> >>>> 2. Are you aware of any instance in which ICANN's >>>> jurisdiction affected any dispute resolution process or >>>> litigation related to domain names? >>>> >>>> If the answer is Yes, please describe specific cases or >>>> incidents, including the date, the parties involved, and links to >>>> any relevant documents. >>>> >>>> >>>> >>>> >>>> >>>> >>>> Mike Rodenbaugh >>>> >>>> RODENBAUGH LAW >>>> >>>> tel/fax: +1.415.738.8087 <tel:%2B1.415.738.8087> >>>> >>>> http://rodenbaugh.com >>>> >>>> >>>> >>>> On Wed, Nov 23, 2016 at 6:47 AM, Mueller, Milton L >>>> <milton@gatech.edu <mailto:milton@gatech.edu> <mailto:milton@gatech.edu <mailto:milton@gatech.edu>>> wrote: >>>> >>>> CW and I have agreed on the following draft: >>>> >>>> >>>> >>>> >>>> >>>> *Request for stakeholder input on jurisdiction issues* >>>> >>>> >>>> >>>> The Jurisdiction subgroup of the CCWG Accountability is >>>> asking for the community to provide factual input on the >>>> following questions: >>>> >>>> >>>> >>>> 1. Has your business, your privacy or your ability to >>>> use or purchase DNS-related services, been affected by >>>> ICANN's jurisdiction in any way? >>>> >>>> If the answer is Yes, please describe specific cases or >>>> incidents, including the date, the parties involved, and >>>> links to any relevant documents. >>>> >>>> >>>> >>>> 2. Has ICANN's jurisdiction affected any dispute >>>> resolution process or litigation related to domain names you >>>> have been involved in? >>>> >>>> If the answer is Yes, please describe specific cases or >>>> incidents, including the date, the parties involved, and >>>> links to any relevant documents. >>>> >>>> >>>> >>>> >>>> >>>> >>>> >>>> Dr. Milton L. Mueller >>>> >>>> Professor, School of Public Policy >>>> >>>> Georgia Institute of Technology >>>> >>>> >>>> >>>> >>>> >>>> >>>> _______________________________________________ >>>> Ws2-jurisdiction mailing list >>>> Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> <mailto: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> >>>> >>>> >>>> >>>> >>>> >>>> >>>> _______________________________________________ >>>> >>>> Ws2-jurisdiction mailing list >>>> >>>> Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> <mailto: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> >>>> >>>> >>>> >>> >>> >>> _______________________________________________ >>> 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> >> >> >> --- >> This email has been checked for viruses by Avast antivirus software. >> https://www.avast.com/antivirus <https://www.avast.com/antivirus> >> >> _______________________________________________ >> 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> > _______________________________________________ > 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> >
_______________________________________________ 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>
_______________________________________________ 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 --- This email has been checked for viruses by Avast antivirus software. https://www.avast.com/antivirus
+1 Greg and thank you for keeping us on track 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: Monday, November 28, 2016 4:12 AM To: Greg Shatan <gregshatanipc@gmail.com>; ws2-jurisdiction@icann.org Subject: Re: [Ws2-jurisdiction] first draft of fact solicitation questions + 1 Greg On 28/11/2016 02:12, Greg Shatan wrote: All, This discussion has ranged well beyond the current stage of our work and potentially beyond the scope of this subgroup; we need to refocus. After we "froze" the working documents prior to Hyderabad, the rapporteurs decided to allow the mailing list to "run free" for a while, without regard to our work plan, the active work we're engaged in, or the scope and remit of this subgroup. However, neither this subgroup or this mailing list is intended to be a general discussion of anything related to "ICANN" and "jurisdiction." This is a working (sub)group and this email list needs to be devoted to the work before the group. As a general reminder, the overall working method we arrived at was first to look for issues; after that was done, we would move on to look (if issues were identified and agreed) at potential remedies. To be more specific, our plan is to first identify the "influences" of the "multiple layers" of ICANN's jurisdiction(s). These influences may be positive (e.g., advantages), neutral or negative (e.g., issues). As agreed by the subgroup, we are currently discussing and trying to answer the following question "What is the influence of ICANN's existing jurisdiction(s) relating to resolution of disputes (i.e., choice of law and venue) on the actual operation of ICANN's policies and accountability mechanisms?" We have been discussing possible influences, but these have been "hypotheticals" -- proposed by members of this subgroup. However, we've noticed that we are short on information about actual occurrences. As a result, at our last meeting we decided to make a factual inquiry to seek actual experiences that people and entities have had where ICANN's current jurisdictional set-up came into play. That is where we currently stand. After we identify and agree on issues and concerns (both hypothetical and actual), our work will turn to identifying and analyzing potential remedies for the listed issues/concerns, including any potential consequences or risks associated with those remedies. As discussed, the remedies need to be directly related to, and solutions for, the identified issues/concerns. We are not up to the remedies stage in our work, and we won't be until we identify and coming to consensus on specific issues. Any discussion of remedies now is premature, and to the extent it displaces discussion of influences and issues, it's actually delaying our work. Immunity falls into the category of potential "remedies." As such, it is premature to discuss it at this stage in our work. If and when we identify issues/concerns, we can look at potential remedies. If appropriate (i.e., if it appears to be a remedy to an identified issue), we can discuss "immunity" at that time. However, now is not the time for that discussion, and we need to put that discussion aside and focus on the work that is actually in front of us. Similarly, I believe that we need to keep our fact solicitation focused as well. We are looking for actual experiences to supplement the apparently limited experiences of those in the group. When it comes to questions of opinion or speculation, that is properly the work of this subgroup, and should be part of our deliberative process. We will get further input from the CCWG plenary and then through public comment. Let's follow our work plan and focus on the task in front of us. That's how we will get through the work. Thank you. Greg Shatan co-rapporteur On Sun, Nov 27, 2016 at 1:43 AM, parminder <parminder@itforchange.net <mailto:parminder@itforchange.net> > wrote: On Saturday 26 November 2016 10:07 PM, Mueller, Milton L wrote:
I don't object to "efforts to look for immunity from laws that affect
ICANN's ability to serve clients internationally." I just don't think modifying the current questions is the right way to go about that. You are mixing up two distinct efforts. One is an attempt to gather facts and cases about real, existing issues. The other is an attempt to erect new safeguards to guard against possible but hypothetical problems. The hypotheticals can be discussed and developed within the jurisdiction subgroup, there is no need to circulate questions about them.
If you mix those two things up you will undermine and possibly destroy the
value of the first, and possibly both, because it will not be clear what we are asking people. So, please, keep our questions focused and clear, and pursue other agendas in other ways. Let both kinds of agendas be pursued in the say way, or equal opportunity be given to both .... We can have a questionnaire in two parts, and in any case, the nature of the question will make very clear what is being sought by which question. p
--MM
I do not think that this immunity can be gained in the WS2 timeframe, but
I do
believe that WS2 could initiate yet another CCWG effort to work on that, if the consensus of the group were to do so.
But first we need more of the background information, the so-called facts. We have to remember that with NTIA oversight, the application of some laws may have been different than it might be going forward. We need to understand whether that is the case or not, and whether there are laws that could now be applied to ICANN's activities that were not applied before.
avri
On 26-Nov-16 05:08, parminder wrote:
On Saturday 26 November 2016 01:55 PM, Mueller, Milton L wrote:
Sorry, Parminder, I see this as a request for opinions, not facts. The whole point of this exercise is to gain specific factual cases that show actual issues, not to provide people with an excuse to complain about what the "think are the problems." I would reject adding such a question to the list
Milton, you probably mean, you are against adding such a question :). I dont see you have any authority to reject anything any more than I have to reject your original formulation.
Was not the community accountability mechanism instituted just on the basis of "what people think are the problems"? I saw no efforts to gather facts with surveys like
"1. Are you aware of any instance in which anyone's business, privacy, or ability to use or purchase DNS-related services, has been affected by absence of a community accountability mechanism ?
If any such known 'facts' exist I am unaware of them and will like to know.
In case of the question of ICANN's jurisdiction of incorporation analytical facts are rather more evident, as raised in the civil society statement.
The process we employ can lead towards certain kind of outcomes rather than others. And I see this particular process being aimed at foreclosing the jurisdiction of incorporation question. This is fact the "application of public laws question" because immunity from such application can be obtained even without changing ICANN's place of jurisdiction.
Meaning ICANN can stay incorporated as US non profit in California, and it exempted from application form various public laws as per the US immunity act that I cited. I also said that, as far as I can understand, it is possible to keep the private disputes arising from ICANN's organisational system, including those about enforcement of community powers, to be subject to US/ Californian law, strictly only for such dispute resolution as per ICANN bylaws. We need to hear from this group why this is not possible or not preferred...
parminder
*From:*ws2-jurisdiction-bounces@icann.org
<mailto:ws2-jurisdiction-bounces@icann.org>
[mailto:ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> ] *On Behalf Of *parminder *Sent:* Wednesday, November 23, 2016 11:54 PM *To:* ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> *Subject:* Re: [Ws2-jurisdiction] first draft of fact solicitation questions
I will like to add a general question to the below:
What do you think are the problems, if any, with continued jurisdiction of the US state over ICANN, as a US non-profit? Please justify your response with appropriate examples, analysis, etc. Especially, if there are existing and past instances that highlight such problems please indicate them.
parminder
On Wednesday 23 November 2016 09:50 PM, Mike Rodenbaugh wrote:
These seem well-stated, except perhaps they should not be looking only for personal experience, but broaden the request to seek any experience the responder is aware of? So I suggest something like:
1. Are you aware of any instance in which anyone's business, privacy, or ability to use or purchase DNS-related services, has been affected by ICANN's jurisdiction in any way?
If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents.
2. Are you aware of any instance in which ICANN's jurisdiction affected any dispute resolution process or litigation related to domain names?
If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents.
Mike Rodenbaugh
RODENBAUGH LAW
tel/fax: +1.415.738.8087 <tel:%2B1.415.738.8087>
On Wed, Nov 23, 2016 at 6:47 AM, Mueller, Milton L <milton@gatech.edu <mailto:milton@gatech.edu> <mailto:milton@gatech.edu <mailto:milton@gatech.edu> >> wrote:
CW and I have agreed on the following draft:
*Request for stakeholder input on jurisdiction issues*
The Jurisdiction subgroup of the CCWG Accountability is asking for the community to provide factual input on the following questions:
1. Has your business, your privacy or your ability to use or purchase DNS-related services, been affected by ICANN's jurisdiction in any way?
If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents.
2. Has ICANN's jurisdiction affected any dispute resolution process or litigation related to domain names you have been involved in?
If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents.
Dr. Milton L. Mueller
Professor, School of Public Policy
Georgia Institute of Technology
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> <mailto: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> <mailto:Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> >
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
--- This email has been checked for viruses by Avast antivirus software. https://www.avast.com/antivirus
_______________________________________________ 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
_______________________________________________ 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 -- ------------ Matthew Shears Global Internet Policy and Human Rights Center for Democracy & Technology (CDT) + 44 771 2472987 _____ <https://www.avast.com/sig-email?utm_medium=email&utm_source=link&utm_campai gn=sig-email&utm_content=emailclient> This email has been checked for viruses by Avast antivirus software. www.avast.com <https://www.avast.com/sig-email?utm_medium=email&utm_source=link&utm_campai gn=sig-email&utm_content=emailclient>
Hi, I find the decision to limit the kinds of facts you will accept somewhat arbitrary. Existing laws are also facts. avri -1 On 27-Nov-16 21:12, Greg Shatan wrote:
All,
This discussion has ranged well beyond the current stage of our work and potentially beyond the scope of this subgroup; we need to refocus.
After we "froze" the working documents prior to Hyderabad, the rapporteurs decided to allow the mailing list to "run free" for a while, without regard to our work plan, the active work we're engaged in, or the scope and remit of this subgroup. However, neither this subgroup or this mailing list is intended to be a general discussion of anything related to "ICANN" and "jurisdiction." This is a working (sub)group and this email list needs to be devoted to the work before the group.
As a general reminder, the overall working method we arrived at was first to look for _issues_; after that was done, we would move on to look (if issues were identified and agreed) at potential _remedies_.
To be more specific, our plan is to first identify the "influences" of the "multiple layers" of ICANN's jurisdiction(s). These influences may be positive (e.g., advantages), neutral or negative (e.g., issues). As agreed by the subgroup, we are currently discussing and trying to answer the following question /"What is the influence of ICANN’s existing jurisdiction(s) relating to resolution of disputes (i.e., choice of law and venue) on the actual operation of ICANN’s policies and accountability mechanisms?/"
We have been discussing possible influences, but these have been "hypotheticals" -- proposed by members of this subgroup. However, we've noticed that we are short on information about actual occurrences. As a result, at our last meeting we decided to make a factual inquiry to seek actual experiences that people and entities have had where ICANN's current jurisdictional set-up came into play. That is where we currently stand.
After we identify and agree on issues and concerns (both hypothetical and actual), our work will turn to identifying and analyzing potential remedies for the listed issues/concerns, including any potential consequences or risks associated with those remedies. As discussed, the remedies need to be directly related to, and solutions for, the identified issues/concerns. We are not up to the remedies stage in our work, and we won't be until we identify and coming to consensus on specific issues. Any discussion of remedies now is premature, and to the extent it displaces discussion of influences and issues, it's actually delaying our work.
Immunity falls into the category of potential "remedies." As such, it is premature to discuss it at this stage in our work. If and when we identify issues/concerns, we can look at potential remedies. If appropriate (i.e., if it appears to be a remedy to an identified issue), we can discuss "immunity" at that time. However, now is not the time for that discussion, and we need to put that discussion aside and focus on the work that is actually in front of us.
Similarly, I believe that we need to keep our fact solicitation focused as well. We are looking for actual experiences to supplement the apparently limited experiences of those in the group. When it comes to questions of opinion or speculation, that is properly the work of this subgroup, and should be part of our deliberative process. We will get further input from the CCWG plenary and then through public comment.
Let's follow our work plan and focus on the task in front of us. That's how we will get through the work. Thank you.
Greg Shatan co-rapporteur
On Sun, Nov 27, 2016 at 1:43 AM, parminder <parminder@itforchange.net <mailto:parminder@itforchange.net>> wrote:
On Saturday 26 November 2016 10:07 PM, Mueller, Milton L wrote: > > I don't object to "efforts to look for immunity from laws that affect ICANN's ability to serve clients internationally." I just don't think modifying the current questions is the right way to go about that. You are mixing up two distinct efforts. One is an attempt to gather facts and cases about real, existing issues. The other is an attempt to erect new safeguards to guard against possible but hypothetical problems. The hypotheticals can be discussed and developed within the jurisdiction subgroup, there is no need to circulate questions about them. > > If you mix those two things up you will undermine and possibly destroy the value of the first, and possibly both, because it will not be clear what we are asking people. So, please, keep our questions focused and clear, and pursue other agendas in other ways.
Let both kinds of agendas be pursued in the say way, or equal opportunity be given to both .... We can have a questionnaire in two parts, and in any case, the nature of the question will make very clear what is being sought by which question.
p
> > --MM > >> I do not think that this immunity can be gained in the WS2 timeframe, but I do >> believe that WS2 could initiate yet another CCWG effort to work on that, if the >> consensus of the group were to do so. >> >> But first we need more of the background information, the so-called facts. We >> have to remember that with NTIA oversight, the application of some laws may >> have been different than it might be going forward. We need to understand >> whether that is the case or not, and whether there are laws that could now be >> applied to ICANN's activities that were not applied before. >> >> avri >> >> >> >> On 26-Nov-16 05:08, parminder wrote: >>> >>> >>> On Saturday 26 November 2016 01:55 PM, Mueller, Milton L wrote: >>>> Sorry, Parminder, I see this as a request for opinions, not facts. >>>> The whole point of this exercise is to gain specific factual cases >>>> that show actual issues, not to provide people with an excuse to >>>> complain about what the "think are the problems." I would reject >>>> adding such a question to the list >>>> >>> Milton, you probably mean, you are against adding such a question :). >>> I dont see you have any authority to reject anything any more than I >>> have to reject your original formulation. >>> >>> Was not the community accountability mechanism instituted just on the >>> basis of "what people think are the problems"? I saw no efforts to >>> gather facts with surveys like >>> >>> "1. Are you aware of any instance in which anyone's business, >>> privacy, or ability to use or purchase DNS-related services, has been >>> affected by absence of a community accountability mechanism ? >>> >>> If any such known 'facts' exist I am unaware of them and will like to >>> know. >>> >>> In case of the question of ICANN's jurisdiction of incorporation >>> analytical facts are rather more evident, as raised in the civil >>> society statement. >>> >>> The process we employ can lead towards certain kind of outcomes rather >>> than others. And I see this particular process being aimed at >>> foreclosing the jurisdiction of incorporation question. This is fact >>> the "application of public laws question" because immunity from such >>> application can be obtained even without changing ICANN's place of >>> jurisdiction. >>> >>> Meaning ICANN can stay incorporated as US non profit in California, >>> and it exempted from application form various public laws as per the >>> US immunity act that I cited. I also said that, as far as I can >>> understand, it is possible to keep the private disputes arising from >>> ICANN's organisational system, including those about enforcement of >>> community powers, to be subject to US/ Californian law, strictly only >>> for such dispute resolution as per ICANN bylaws. We need to hear from >>> this group why this is not possible or not preferred... >>> >>> parminder >>> >>> >>>> >>>> *From:*ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> >>>> [mailto:ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org>] *On Behalf Of *parminder >>>> *Sent:* Wednesday, November 23, 2016 11:54 PM >>>> *To:* ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> >>>> *Subject:* Re: [Ws2-jurisdiction] first draft of fact solicitation >>>> questions >>>> >>>> >>>> >>>> I will like to add a general question to the below: >>>> >>>> What do you think are the problems, if any, with continued >>>> jurisdiction of the US state over ICANN, as a US non-profit? Please >>>> justify your response with appropriate examples, analysis, etc. >>>> Especially, if there are existing and past instances that highlight >>>> such problems please indicate them. >>>> >>>> parminder >>>> >>>> >>>> >>>> On Wednesday 23 November 2016 09:50 PM, Mike Rodenbaugh wrote: >>>> >>>> These seem well-stated, except perhaps they should not be looking >>>> only for personal experience, but broaden the request to seek any >>>> experience the responder is aware of? So I suggest something like: >>>> >>>> >>>> >>>> 1. Are you aware of any instance in which anyone's >>>> business, privacy, or ability to use or purchase DNS-related >>>> services, has been affected by ICANN's jurisdiction in any way? >>>> >>>> If the answer is Yes, please describe specific cases or >>>> incidents, including the date, the parties involved, and links to >>>> any relevant documents. >>>> >>>> 2. Are you aware of any instance in which ICANN's >>>> jurisdiction affected any dispute resolution process or >>>> litigation related to domain names? >>>> >>>> If the answer is Yes, please describe specific cases or >>>> incidents, including the date, the parties involved, and links to >>>> any relevant documents. >>>> >>>> >>>> >>>> >>>> >>>> >>>> Mike Rodenbaugh >>>> >>>> RODENBAUGH LAW >>>> >>>> tel/fax: +1.415.738.8087 <tel:%2B1.415.738.8087> >>>> >>>> http://rodenbaugh.com >>>> >>>> >>>> >>>> On Wed, Nov 23, 2016 at 6:47 AM, Mueller, Milton L >>>> <milton@gatech.edu <mailto:milton@gatech.edu> <mailto:milton@gatech.edu <mailto:milton@gatech.edu>>> wrote: >>>> >>>> CW and I have agreed on the following draft: >>>> >>>> >>>> >>>> >>>> >>>> *Request for stakeholder input on jurisdiction issues* >>>> >>>> >>>> >>>> The Jurisdiction subgroup of the CCWG Accountability is >>>> asking for the community to provide factual input on the >>>> following questions: >>>> >>>> >>>> >>>> 1. Has your business, your privacy or your ability to >>>> use or purchase DNS-related services, been affected by >>>> ICANN's jurisdiction in any way? >>>> >>>> If the answer is Yes, please describe specific cases or >>>> incidents, including the date, the parties involved, and >>>> links to any relevant documents. >>>> >>>> >>>> >>>> 2. Has ICANN's jurisdiction affected any dispute >>>> resolution process or litigation related to domain names you >>>> have been involved in? >>>> >>>> If the answer is Yes, please describe specific cases or >>>> incidents, including the date, the parties involved, and >>>> links to any relevant documents. >>>> >>>> >>>> >>>> >>>> >>>> >>>> >>>> Dr. Milton L. Mueller >>>> >>>> Professor, School of Public Policy >>>> >>>> Georgia Institute of Technology >>>> >>>> >>>> >>>> >>>> >>>> >>>> _______________________________________________ >>>> Ws2-jurisdiction mailing list >>>> Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> <mailto: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> >>>> >>>> >>>> >>>> >>>> >>>> >>>> _______________________________________________ >>>> >>>> Ws2-jurisdiction mailing list >>>> >>>> Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> <mailto: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> >>>> >>>> >>>> >>> >>> >>> _______________________________________________ >>> 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> >> >> >> --- >> This email has been checked for viruses by Avast antivirus software. >> https://www.avast.com/antivirus <https://www.avast.com/antivirus> >> >> _______________________________________________ >> 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> > _______________________________________________ > 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> >
_______________________________________________ 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>
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
--- This email has been checked for viruses by Avast antivirus software. https://www.avast.com/antivirus
Greg I fully disagree that the reason for the group not making progress is that people have been inappropriately focussing on and discussing the problems with the application of US public law on ICANN, and possible remedies. In fact that has been the only *substantive* discussion, and to that extent, some progress, in this group. Let me explain what I mean. I had suggested three key areas of work, and for us to simultaneously work on them. I had described these as follows 1. Issue of incorporation of ICANN, or application of US public law on ICANN, and its implication on ICANN policy work 2. Issue of applicable jurisdictions on private law related to ICANN's internal working (that would also cover accountability mechanisms) and various contracts that it enters into 3. Issue of application of public law of other countries on ICANN where ICANN may have presence This is not much different form how you describe or detail the jurisdiction issue (the subject matter of this subgroup) in your latest email. To quote; *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 or contacts with that country, or (c) any “choice of law” or venue provisions in agreements with ICANN.* So, here we agree on the three sub divisions of the jurisdiction issue. Now, the fact is that while there has at least been a framing of the problems, with some precise instances/ examples, that we are trying to solve, for the issue of "US public law application on ICANN" (your (a)), I have seen no one here provide that for your (b) and (c). This is the reason that I asked that lets also so something in these areas. I have not seen the framing of statement of problem, and its elaboration with real examples/ instances, for (b) and (c). I am not saying that therefore there that there is no problem here. But please, those who consider these two be the most important areas of our work, do provide us with the nature of problem, its instances, and possible things we can and should do about them... That will make us move forward in these areas. After-all, for this group to do something, there has to be real problems, and, equally, /*some real possibilities to do something about them*/. A lot of work has been done here in the last many days of framing and detailing the problem with "application of US public law on ICANN" (your (a)), and even laying out some directions in which remedies may lie. (Of course there is not much value in discussing a problem to which there is no possible remedy, and to that extent remedy related discussions will always come in.) But those who feel there is nothing to do about your (a) but it is (b) and (c) that are the real issues have not at all come forward to frame these issues - in terms of their actuals, and possible directions of remedies. They seem to have spent all their time to arguing that any kind of problems with (a) do not exist! I do not think this is fruitful way for us to go forward. /*Let this group first frame the problems that exist in (b) and (c), with actual details/ examples, with at least some inkling about the kind of resolutions that can be had. Fortunately, this has been done to a good extent regarding (a).*/ After we have undertaken that kind of exercise, if required we can approach the wider community/ public about more clear and specific knowledge that may exist outside the group. Having not done such preliminary work to expound and exemplify, with possible actions, categories (b) and (c), this whole exercise to unearth the precise person that has had a precise experience with regard to the DNS system, to me, seems aimed at nothing other than to collect a nil report with regard to (a), and then show in this new way, again, that there indeed is no problem in this area. Therefore, the group really is still only moving around issues under (a), whether in asserting them or denying them. It is because of being caught in this negative situation that we are not making progress. If we indeed at this stage are for collecting information about the nature of the jurisdiction issue in its three way categorisation, lets be open to collecting information, and compiling it, rather than focus on limiting the exercise. After all, what are we afraid of? It is not that hundreds of responses will come to our questionnaire that we will simply not be able to deal with! I can safely put the outer limit at 25, and that is pretty generous. We can just ignore what we find not of relevance. But before going out of the group, I will like this group to make some clear enunciation of the categories (b) and (c), with problem statement, actual issues, and likely directions of resolution. And while doing that, lets not try and stop progress in one area where some progress is being made, which is Greg's (a) above. We need to get out of a negative mindset that this group seem to have got struck into. parminder On Monday 28 November 2016 07:42 AM, Greg Shatan wrote:
All,
This discussion has ranged well beyond the current stage of our work and potentially beyond the scope of this subgroup; we need to refocus.
After we "froze" the working documents prior to Hyderabad, the rapporteurs decided to allow the mailing list to "run free" for a while, without regard to our work plan, the active work we're engaged in, or the scope and remit of this subgroup. However, neither this subgroup or this mailing list is intended to be a general discussion of anything related to "ICANN" and "jurisdiction." This is a working (sub)group and this email list needs to be devoted to the work before the group.
As a general reminder, the overall working method we arrived at was first to look for _issues_; after that was done, we would move on to look (if issues were identified and agreed) at potential _remedies_.
To be more specific, our plan is to first identify the "influences" of the "multiple layers" of ICANN's jurisdiction(s). These influences may be positive (e.g., advantages), neutral or negative (e.g., issues). As agreed by the subgroup, we are currently discussing and trying to answer the following question /"What is the influence of ICANN’s existing jurisdiction(s) relating to resolution of disputes (i.e., choice of law and venue) on the actual operation of ICANN’s policies and accountability mechanisms?/"
We have been discussing possible influences, but these have been "hypotheticals" -- proposed by members of this subgroup. However, we've noticed that we are short on information about actual occurrences. As a result, at our last meeting we decided to make a factual inquiry to seek actual experiences that people and entities have had where ICANN's current jurisdictional set-up came into play. That is where we currently stand.
After we identify and agree on issues and concerns (both hypothetical and actual), our work will turn to identifying and analyzing potential remedies for the listed issues/concerns, including any potential consequences or risks associated with those remedies. As discussed, the remedies need to be directly related to, and solutions for, the identified issues/concerns. We are not up to the remedies stage in our work, and we won't be until we identify and coming to consensus on specific issues. Any discussion of remedies now is premature, and to the extent it displaces discussion of influences and issues, it's actually delaying our work.
Immunity falls into the category of potential "remedies." As such, it is premature to discuss it at this stage in our work. If and when we identify issues/concerns, we can look at potential remedies. If appropriate (i.e., if it appears to be a remedy to an identified issue), we can discuss "immunity" at that time. However, now is not the time for that discussion, and we need to put that discussion aside and focus on the work that is actually in front of us.
Similarly, I believe that we need to keep our fact solicitation focused as well. We are looking for actual experiences to supplement the apparently limited experiences of those in the group. When it comes to questions of opinion or speculation, that is properly the work of this subgroup, and should be part of our deliberative process. We will get further input from the CCWG plenary and then through public comment.
Let's follow our work plan and focus on the task in front of us. That's how we will get through the work. Thank you.
Greg Shatan co-rapporteur
On Sun, Nov 27, 2016 at 1:43 AM, parminder <parminder@itforchange.net <mailto:parminder@itforchange.net>> wrote:
On Saturday 26 November 2016 10:07 PM, Mueller, Milton L wrote: > > I don't object to "efforts to look for immunity from laws that affect ICANN's ability to serve clients internationally." I just don't think modifying the current questions is the right way to go about that. You are mixing up two distinct efforts. One is an attempt to gather facts and cases about real, existing issues. The other is an attempt to erect new safeguards to guard against possible but hypothetical problems. The hypotheticals can be discussed and developed within the jurisdiction subgroup, there is no need to circulate questions about them. > > If you mix those two things up you will undermine and possibly destroy the value of the first, and possibly both, because it will not be clear what we are asking people. So, please, keep our questions focused and clear, and pursue other agendas in other ways.
Let both kinds of agendas be pursued in the say way, or equal opportunity be given to both .... We can have a questionnaire in two parts, and in any case, the nature of the question will make very clear what is being sought by which question.
p
> > --MM > >> I do not think that this immunity can be gained in the WS2 timeframe, but I do >> believe that WS2 could initiate yet another CCWG effort to work on that, if the >> consensus of the group were to do so. >> >> But first we need more of the background information, the so-called facts. We >> have to remember that with NTIA oversight, the application of some laws may >> have been different than it might be going forward. We need to understand >> whether that is the case or not, and whether there are laws that could now be >> applied to ICANN's activities that were not applied before. >> >> avri >> >> >> >> On 26-Nov-16 05:08, parminder wrote: >>> >>> >>> On Saturday 26 November 2016 01:55 PM, Mueller, Milton L wrote: >>>> Sorry, Parminder, I see this as a request for opinions, not facts. >>>> The whole point of this exercise is to gain specific factual cases >>>> that show actual issues, not to provide people with an excuse to >>>> complain about what the "think are the problems." I would reject >>>> adding such a question to the list >>>> >>> Milton, you probably mean, you are against adding such a question :). >>> I dont see you have any authority to reject anything any more than I >>> have to reject your original formulation. >>> >>> Was not the community accountability mechanism instituted just on the >>> basis of "what people think are the problems"? I saw no efforts to >>> gather facts with surveys like >>> >>> "1. Are you aware of any instance in which anyone's business, >>> privacy, or ability to use or purchase DNS-related services, has been >>> affected by absence of a community accountability mechanism ? >>> >>> If any such known 'facts' exist I am unaware of them and will like to >>> know. >>> >>> In case of the question of ICANN's jurisdiction of incorporation >>> analytical facts are rather more evident, as raised in the civil >>> society statement. >>> >>> The process we employ can lead towards certain kind of outcomes rather >>> than others. And I see this particular process being aimed at >>> foreclosing the jurisdiction of incorporation question. This is fact >>> the "application of public laws question" because immunity from such >>> application can be obtained even without changing ICANN's place of >>> jurisdiction. >>> >>> Meaning ICANN can stay incorporated as US non profit in California, >>> and it exempted from application form various public laws as per the >>> US immunity act that I cited. I also said that, as far as I can >>> understand, it is possible to keep the private disputes arising from >>> ICANN's organisational system, including those about enforcement of >>> community powers, to be subject to US/ Californian law, strictly only >>> for such dispute resolution as per ICANN bylaws. We need to hear from >>> this group why this is not possible or not preferred... >>> >>> parminder >>> >>> >>>> >>>> *From:*ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> >>>> [mailto:ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org>] *On Behalf Of *parminder >>>> *Sent:* Wednesday, November 23, 2016 11:54 PM >>>> *To:* ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> >>>> *Subject:* Re: [Ws2-jurisdiction] first draft of fact solicitation >>>> questions >>>> >>>> >>>> >>>> I will like to add a general question to the below: >>>> >>>> What do you think are the problems, if any, with continued >>>> jurisdiction of the US state over ICANN, as a US non-profit? Please >>>> justify your response with appropriate examples, analysis, etc. >>>> Especially, if there are existing and past instances that highlight >>>> such problems please indicate them. >>>> >>>> parminder >>>> >>>> >>>> >>>> On Wednesday 23 November 2016 09:50 PM, Mike Rodenbaugh wrote: >>>> >>>> These seem well-stated, except perhaps they should not be looking >>>> only for personal experience, but broaden the request to seek any >>>> experience the responder is aware of? So I suggest something like: >>>> >>>> >>>> >>>> 1. Are you aware of any instance in which anyone's >>>> business, privacy, or ability to use or purchase DNS-related >>>> services, has been affected by ICANN's jurisdiction in any way? >>>> >>>> If the answer is Yes, please describe specific cases or >>>> incidents, including the date, the parties involved, and links to >>>> any relevant documents. >>>> >>>> 2. Are you aware of any instance in which ICANN's >>>> jurisdiction affected any dispute resolution process or >>>> litigation related to domain names? >>>> >>>> If the answer is Yes, please describe specific cases or >>>> incidents, including the date, the parties involved, and links to >>>> any relevant documents. >>>> >>>> >>>> >>>> >>>> >>>> >>>> Mike Rodenbaugh >>>> >>>> RODENBAUGH LAW >>>> >>>> tel/fax: +1.415.738.8087 <tel:%2B1.415.738.8087> >>>> >>>> http://rodenbaugh.com >>>> >>>> >>>> >>>> On Wed, Nov 23, 2016 at 6:47 AM, Mueller, Milton L >>>> <milton@gatech.edu <mailto:milton@gatech.edu> <mailto:milton@gatech.edu <mailto:milton@gatech.edu>>> wrote: >>>> >>>> CW and I have agreed on the following draft: >>>> >>>> >>>> >>>> >>>> >>>> *Request for stakeholder input on jurisdiction issues* >>>> >>>> >>>> >>>> The Jurisdiction subgroup of the CCWG Accountability is >>>> asking for the community to provide factual input on the >>>> following questions: >>>> >>>> >>>> >>>> 1. Has your business, your privacy or your ability to >>>> use or purchase DNS-related services, been affected by >>>> ICANN's jurisdiction in any way? >>>> >>>> If the answer is Yes, please describe specific cases or >>>> incidents, including the date, the parties involved, and >>>> links to any relevant documents. >>>> >>>> >>>> >>>> 2. Has ICANN's jurisdiction affected any dispute >>>> resolution process or litigation related to domain names you >>>> have been involved in? >>>> >>>> If the answer is Yes, please describe specific cases or >>>> incidents, including the date, the parties involved, and >>>> links to any relevant documents. >>>> >>>> >>>> >>>> >>>> >>>> >>>> >>>> Dr. Milton L. Mueller >>>> >>>> Professor, School of Public Policy >>>> >>>> Georgia Institute of Technology >>>> >>>> >>>> >>>> >>>> >>>> >>>> _______________________________________________ >>>> Ws2-jurisdiction mailing list >>>> Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> <mailto: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> >>>> >>>> >>>> >>>> >>>> >>>> >>>> _______________________________________________ >>>> >>>> Ws2-jurisdiction mailing list >>>> >>>> Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> <mailto: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> >>>> >>>> >>>> >>> >>> >>> _______________________________________________ >>> 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> >> >> >> --- >> This email has been checked for viruses by Avast antivirus software. >> https://www.avast.com/antivirus <https://www.avast.com/antivirus> >> >> _______________________________________________ >> 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> > _______________________________________________ > 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> >
_______________________________________________ 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>
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
Please see responses inline below. On Mon, Nov 28, 2016 at 10:03 PM, parminder <parminder@itforchange.net> wrote:
Greg
I fully disagree that the reason for the group not making progress is that people have been inappropriately focussing on and discussing the problems with the application of US public law on ICANN, and possible remedies. In fact that has been the only *substantive* discussion, and to that extent, some progress, in this group. Let me explain what I mean.
I had suggested three key areas of work, and for us to simultaneously work on them. I had described these as follows
1. Issue of incorporation of ICANN, or application of US public law on ICANN, and its implication on ICANN policy work
2. Issue of applicable jurisdictions on private law related to ICANN's internal working (that would also cover accountability mechanisms) and various contracts that it enters into
3. Issue of application of public law of other countries on ICANN where ICANN may have presence
Parminder, These three items may be your agenda, but they are not the agenda of this group. Perhaps you think "progress" was made because you engaged in a discussion of your agenda on this mailing list while the documents we are working on were "frozen" and the list was allowed to operate unmoderated. But that is not progress for this group.
This is not much different form how you describe or detail the jurisdiction issue (the subject matter of this subgroup) in your latest email. To quote;
*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 or contacts with that country, or (c) any “choice of law” or venue provisions in agreements with ICANN.*
So, here we agree on the three sub divisions of the jurisdiction issue.
No. The statement you quote above is a statement of fact, not a statement of issues.
Now, the fact is that while there has at least been a framing of the problems, with some precise instances/ examples, that we are trying to solve, for the issue of "US public law application on ICANN" (your (a)), I have seen no one here provide that for your (b) and (c). This is the reason that I asked that lets also so something in these areas.
No. We are not "trying to solve, for the issue of "US public law application on ICANN." Again, this is your agenda, not the agenda of this group. Again, (a) above is merely a statement of fact; it is not a statement of the work of this group.
I have not seen the framing of statement of problem, and its elaboration with real examples/ instances, for (b) and (c). I am not saying that therefore there that there is no problem here. But please, those who consider these two be the most important areas of our work, do provide us with the nature of problem, its instances, and possible things we can and should do about them... That will make us move forward in these areas.
After-all, for this group to do something, there has to be real problems, and, equally, *some real possibilities to do something about them*. A lot of work has been done here in the last many days of framing and detailing the problem with "application of US public law on ICANN" (your (a)), and even laying out some directions in which remedies may lie. (Of course there is not much value in discussing a problem to which there is no possible remedy, and to that extent remedy related discussions will always come in.)
Again, your statement of your agenda is not "my (a)" and frankly, I think it is an unfortunate attempt to twist my words.
But those who feel there is nothing to do about your (a) but it is (b) and (c) that are the real issues have not at all come forward to frame these issues - in terms of their actuals, and possible directions of remedies. They seem to have spent all their time to arguing that any kind of problems with (a) do not exist! I do not think this is fruitful way for us to go forward.
This is a mischaracterization of the work of this group. I see no need to respond further.
*Let this group first frame the problems that exist in (b) and (c), with actual details/ examples, with at least some inkling about the kind of resolutions that can be had. Fortunately, this has been done to a good extent regarding (a).*
This is not the agenda of the group. Thank you for the suggestion, but we already have work underway, which does relate to choice of law and venue, but not in the way you frame it. We're going to stick to the plan of the group.
After we have undertaken that kind of exercise, if required we can approach the wider community/ public about more clear and specific knowledge that may exist outside the group.
Having not done such preliminary work to expound and exemplify, with possible actions, categories (b) and (c), this whole exercise to unearth the precise person that has had a precise experience with regard to the DNS system, to me, seems aimed at nothing other than to collect a nil report with regard to (a), and then show in this new way, again, that there indeed is no problem in this area. Therefore, the group really is still only moving around issues under (a), whether in asserting them or denying them. It is because of being caught in this negative situation that we are not making progress.
I think you misunderstand the nature of the experience-gathering effort, perhaps because you do not understand the concerns that stakeholders have about governing law and venue. You also ignore the considerable amount of discussion regarding these issues; perhaps this took place while you were disengaged from the work of this group. I suggest you go back and review email traffic and meeting transcripts before the last 3 weeks.
If we indeed at this stage are for collecting information about the nature of the jurisdiction issue in its three way categorisation, lets be open to collecting information, and compiling it, rather than focus on limiting the exercise. After all, what are we afraid of? It is not that hundreds of responses will come to our questionnaire that we will simply not be able to deal with! I can safely put the outer limit at 25, and that is pretty generous. We can just ignore what we find not of relevance.
We are not "collecting information about the nature of the jurisdiction issue in its three way categorisation." We are seeking to collect actual experiences that people and entities have had where "ICANN's jurisdiction" has come into play, based on the discussion on the prior call of this group and the questions drafted in conformance with the plan on that call. I've suggested some revisions to those questions. Other than co-opting the definition of "ICANN's jurisdiction" from that suggestion in order to argue in favor of your agenda, you have not responded to those edits.
But before going out of the group, I will like this group to make some clear enunciation of the categories (b) and (c), with problem statement, actual issues, and likely directions of resolution. And while doing that, lets not try and stop progress in one area where some progress is being made, which is Greg's (a) above. We need to get out of a negative mindset that this group seem to have got struck into.
i do not perceive any "negative mindset" in this group, unless you are referring to disagreement with your agenda, which is not going to replace the ongoing work of the subgroup. I'll just point out one more time that the statement that ICANN is "subject to U.S. and California law as a result of its incorporation and location" is a fact statement and not a problem statement or a statement of this group's agenda, and that the unmoderated discussion on this list that ranged off the path of our work is not what we are working on. I'm sorry if allowing a little freedom on the list to detour from the work of the group, during an otherwise fallow time for the work of the group, has been misconstrued as putting that discussion on our agenda. Hopefully that misunderstanding has now been put to rest. Greg
parminder On Monday 28 November 2016 07:42 AM, Greg Shatan wrote:
All,
This discussion has ranged well beyond the current stage of our work and potentially beyond the scope of this subgroup; we need to refocus.
After we "froze" the working documents prior to Hyderabad, the rapporteurs decided to allow the mailing list to "run free" for a while, without regard to our work plan, the active work we're engaged in, or the scope and remit of this subgroup. However, neither this subgroup or this mailing list is intended to be a general discussion of anything related to "ICANN" and "jurisdiction." This is a working (sub)group and this email list needs to be devoted to the work before the group.
As a general reminder, the overall working method we arrived at was first to look for *issues*; after that was done, we would move on to look (if issues were identified and agreed) at potential *remedies*.
To be more specific, our plan is to first identify the "influences" of the "multiple layers" of ICANN's jurisdiction(s). These influences may be positive (e.g., advantages), neutral or negative (e.g., issues). As agreed by the subgroup, we are currently discussing and trying to answer the following question *"What is the influence of ICANN’s existing jurisdiction(s) relating to resolution of disputes (i.e., choice of law and venue) on the actual operation of ICANN’s policies and accountability mechanisms?*"
We have been discussing possible influences, but these have been "hypotheticals" -- proposed by members of this subgroup. However, we've noticed that we are short on information about actual occurrences. As a result, at our last meeting we decided to make a factual inquiry to seek actual experiences that people and entities have had where ICANN's current jurisdictional set-up came into play. That is where we currently stand.
After we identify and agree on issues and concerns (both hypothetical and actual), our work will turn to identifying and analyzing potential remedies for the listed issues/concerns, including any potential consequences or risks associated with those remedies. As discussed, the remedies need to be directly related to, and solutions for, the identified issues/concerns. We are not up to the remedies stage in our work, and we won't be until we identify and coming to consensus on specific issues. Any discussion of remedies now is premature, and to the extent it displaces discussion of influences and issues, it's actually delaying our work.
Immunity falls into the category of potential "remedies." As such, it is premature to discuss it at this stage in our work. If and when we identify issues/concerns, we can look at potential remedies. If appropriate (i.e., if it appears to be a remedy to an identified issue), we can discuss "immunity" at that time. However, now is not the time for that discussion, and we need to put that discussion aside and focus on the work that is actually in front of us.
Similarly, I believe that we need to keep our fact solicitation focused as well. We are looking for actual experiences to supplement the apparently limited experiences of those in the group. When it comes to questions of opinion or speculation, that is properly the work of this subgroup, and should be part of our deliberative process. We will get further input from the CCWG plenary and then through public comment.
Let's follow our work plan and focus on the task in front of us. That's how we will get through the work. Thank you.
Greg Shatan co-rapporteur
On Sun, Nov 27, 2016 at 1:43 AM, parminder <parminder@itforchange.net> wrote:
On Saturday 26 November 2016 10:07 PM, Mueller, Milton L wrote:
I don't object to "efforts to look for immunity from laws that affect
ICANN's ability to serve clients internationally." I just don't think modifying the current questions is the right way to go about that. You are mixing up two distinct efforts. One is an attempt to gather facts and cases about real, existing issues. The other is an attempt to erect new safeguards to guard against possible but hypothetical problems. The hypotheticals can be discussed and developed within the jurisdiction subgroup, there is no need to circulate questions about them.
If you mix those two things up you will undermine and possibly destroy
the value of the first, and possibly both, because it will not be clear what we are asking people. So, please, keep our questions focused and clear, and pursue other agendas in other ways.
Let both kinds of agendas be pursued in the say way, or equal opportunity be given to both .... We can have a questionnaire in two parts, and in any case, the nature of the question will make very clear what is being sought by which question.
p
--MM
I do not think that this immunity can be gained in the WS2 timeframe,
but I do
believe that WS2 could initiate yet another CCWG effort to work on that, if the consensus of the group were to do so.
But first we need more of the background information, the so-called facts. We have to remember that with NTIA oversight, the application of some laws may have been different than it might be going forward. We need to understand whether that is the case or not, and whether there are laws that could now be applied to ICANN's activities that were not applied before.
avri
On 26-Nov-16 05:08, parminder wrote:
On Saturday 26 November 2016 01:55 PM, Mueller, Milton L wrote:
Sorry, Parminder, I see this as a request for opinions, not facts. The whole point of this exercise is to gain specific factual cases that show actual issues, not to provide people with an excuse to complain about what the "think are the problems." I would reject adding such a question to the list
Milton, you probably mean, you are against adding such a question :). I dont see you have any authority to reject anything any more than I have to reject your original formulation.
Was not the community accountability mechanism instituted just on the basis of "what people think are the problems"? I saw no efforts to gather facts with surveys like
"1. Are you aware of any instance in which anyone's business, privacy, or ability to use or purchase DNS-related services, has been affected by absence of a community accountability mechanism ?
If any such known 'facts' exist I am unaware of them and will like to know.
In case of the question of ICANN's jurisdiction of incorporation analytical facts are rather more evident, as raised in the civil society statement.
The process we employ can lead towards certain kind of outcomes rather than others. And I see this particular process being aimed at foreclosing the jurisdiction of incorporation question. This is fact the "application of public laws question" because immunity from such application can be obtained even without changing ICANN's place of jurisdiction.
Meaning ICANN can stay incorporated as US non profit in California, and it exempted from application form various public laws as per the US immunity act that I cited. I also said that, as far as I can understand, it is possible to keep the private disputes arising from ICANN's organisational system, including those about enforcement of community powers, to be subject to US/ Californian law, strictly only for such dispute resolution as per ICANN bylaws. We need to hear from this group why this is not possible or not preferred...
parminder
*From:*ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] *On Behalf Of *parminder *Sent:* Wednesday, November 23, 2016 11:54 PM *To:* ws2-jurisdiction@icann.org *Subject:* Re: [Ws2-jurisdiction] first draft of fact solicitation questions
I will like to add a general question to the below:
What do you think are the problems, if any, with continued jurisdiction of the US state over ICANN, as a US non-profit? Please justify your response with appropriate examples, analysis, etc. Especially, if there are existing and past instances that highlight such problems please indicate them.
parminder
On Wednesday 23 November 2016 09:50 PM, Mike Rodenbaugh wrote:
These seem well-stated, except perhaps they should not be looking only for personal experience, but broaden the request to seek any experience the responder is aware of? So I suggest something
like:
1. Are you aware of any instance in which anyone's business, privacy, or ability to use or purchase DNS-related services, has been affected by ICANN's jurisdiction in any way?
If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents.
2. Are you aware of any instance in which ICANN's jurisdiction affected any dispute resolution process or litigation related to domain names?
If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents.
Mike Rodenbaugh
RODENBAUGH LAW
tel/fax: +1.415.738.8087
On Wed, Nov 23, 2016 at 6:47 AM, Mueller, Milton L <milton@gatech.edu <mailto:milton@gatech.edu>> wrote:
CW and I have agreed on the following draft:
*Request for stakeholder input on jurisdiction issues*
The Jurisdiction subgroup of the CCWG Accountability is asking for the community to provide factual input on the following questions:
1. Has your business, your privacy or your ability to use or purchase DNS-related services, been affected by ICANN's jurisdiction in any way?
If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents.
2. Has ICANN's jurisdiction affected any dispute resolution process or litigation related to domain names you have been involved in?
If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents.
Dr. Milton L. Mueller
Professor, School of Public Policy
Georgia Institute of Technology
_______________________________________________ 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>
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
--- This email has been checked for viruses by Avast antivirus software. https://www.avast.com/antivirus
_______________________________________________ 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
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
_______________________________________________ Ws2-jurisdiction mailing listWs2-jurisdiction@icann.orghttps://mm.icann.org/mailman/listinfo/ws2-jurisdiction
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
Greg I am extremely bothered at what you repeatedly state as allowing some kind of temporary freedom to this group in which, it would appear, unruly people have discussed things that were not supposed to be discussed. Apart from putting this on record, I do not at this stage want to draw out the implications of such statements from one of the chairs of an open working group. I also again reviewed the post Hyderabad discussions on this list, and I found them quite rich and useful. I do not see how the chair has a right to call this as a fallow time for the group. I dont see how a rich discussion on the influence that US incorporation of ICANN has on its policy and operational activities can be considered an unproductive and undesirable discussion. It seems that this group has to march narrowly to the drums, the tune of which I cannot fully make out. It is beginning to feel more than a bit stifling. Next, you seem to be offended even if I take, or propose, your own three way definition of "ICANN jurisdiction", as the statement of issues that this WG could consider, whose express purpose is to consider the "ICANN jurisdiction" issue. Something seems very amiss here. And you call this as pursuing my agenda. I think I was being extremely fair to all three dimensions of ICANN jurisdiction - as you yourself put it. And you ignore that many comments in this discussion that have supported both (1) the US public laws application - or jurisdiction of incorporation - being a key issue and (2) changing the proposed question of external inquiry to include problems that arise from existing US laws/ institutions, owing to the latter's very nature, which is no less a factual thing than anything else . Apart from that fact I think an ordinary member having an express agenda here is rather less problematic that one of the chairs who mostly has been 'the' chair. It is strange that you say that your three way description of what "ICANN jurisdiction" means is a statement of facts and not of issues. I did not understand the meaning of this statement. Are we not to proceed from the facts of what ICANN Jurisdiction means to frame the issues or lines of our inquiry? What could be a better way to proceed than this? Especially with our so pronounced stress on facts. Does this group's work now stand on the single pointed agenda of finding personal experiences of people negatively affected by current state of US jurisdiction? Lets say, even if we agree to send out such a questionnaire, (1) would we really be holding our breath that the responses would give us all we need to proceed further, and (2) if 2 -3 weeks are given for comments, are we declaring a holiday in the interim. Bring the whole task of this group to this one, IMHO very inappropriately made, questionnaire is indeed very problematic. Meanwhile, let me again state that, like many others, I completely disagree with the current form of the questionnaire. I would think that the job of chairs is to try to build consensus around what can go out in the name of the group then just giving one sided views on this issue. parminder On Tuesday 29 November 2016 12:43 PM, Greg Shatan wrote:
Please see responses inline below.
On Mon, Nov 28, 2016 at 10:03 PM, parminder <parminder@itforchange.net <mailto:parminder@itforchange.net>> wrote:
Greg
I fully disagree that the reason for the group not making progress is that people have been inappropriately focussing on and discussing the problems with the application of US public law on ICANN, and possible remedies. In fact that has been the only *substantive* discussion, and to that extent, some progress, in this group. Let me explain what I mean.
I had suggested three key areas of work, and for us to simultaneously work on them. I had described these as follows
1. Issue of incorporation of ICANN, or application of US public law on ICANN, and its implication on ICANN policy work
2. Issue of applicable jurisdictions on private law related to ICANN's internal working (that would also cover accountability mechanisms) and various contracts that it enters into
3. Issue of application of public law of other countries on ICANN where ICANN may have presence
Parminder,
These three items may be your agenda, but they are not the agenda of this group. Perhaps you think "progress" was made because you engaged in a discussion of your agenda on this mailing list while the documents we are working on were "frozen" and the list was allowed to operate unmoderated. But that is not progress for this group.
This is not much different form how you describe or detail the jurisdiction issue (the subject matter of this subgroup) in your latest email. To quote;
*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 or contacts with that country, or (c) any “choice of law” or venue provisions in agreements with ICANN.*
So, here we agree on the three sub divisions of the jurisdiction issue.
No. The statement you quote above is a statement of fact, not a statement of issues.
Now, the fact is that while there has at least been a framing of the problems, with some precise instances/ examples, that we are trying to solve, for the issue of "US public law application on ICANN" (your (a)), I have seen no one here provide that for your (b) and (c). This is the reason that I asked that lets also so something in these areas.
No. We are not "trying to solve, for the issue of "US public law application on ICANN." Again, this is your agenda, not the agenda of this group. Again, (a) above is merely a statement of fact; it is not a statement of the work of this group.
I have not seen the framing of statement of problem, and its elaboration with real examples/ instances, for (b) and (c). I am not saying that therefore there that there is no problem here. But please, those who consider these two be the most important areas of our work, do provide us with the nature of problem, its instances, and possible things we can and should do about them... That will make us move forward in these areas.
After-all, for this group to do something, there has to be real problems, and, equally, /*some real possibilities to do something about them*/. A lot of work has been done here in the last many days of framing and detailing the problem with "application of US public law on ICANN" (your (a)), and even laying out some directions in which remedies may lie. (Of course there is not much value in discussing a problem to which there is no possible remedy, and to that extent remedy related discussions will always come in.)
Again, your statement of your agenda is not "my (a)" and frankly, I think it is an unfortunate attempt to twist my words.
But those who feel there is nothing to do about your (a) but it is (b) and (c) that are the real issues have not at all come forward to frame these issues - in terms of their actuals, and possible directions of remedies. They seem to have spent all their time to arguing that any kind of problems with (a) do not exist! I do not think this is fruitful way for us to go forward.
This is a mischaracterization of the work of this group. I see no need to respond further.
/*Let this group first frame the problems that exist in (b) and (c), with actual details/ examples, with at least some inkling about the kind of resolutions that can be had. Fortunately, this has been done to a good extent regarding (a).*/
This is not the agenda of the group. Thank you for the suggestion, but we already have work underway, which does relate to choice of law and venue, but not in the way you frame it. We're going to stick to the plan of the group.
After we have undertaken that kind of exercise, if required we can approach the wider community/ public about more clear and specific knowledge that may exist outside the group.
Having not done such preliminary work to expound and exemplify, with possible actions, categories (b) and (c), this whole exercise to unearth the precise person that has had a precise experience with regard to the DNS system, to me, seems aimed at nothing other than to collect a nil report with regard to (a), and then show in this new way, again, that there indeed is no problem in this area. Therefore, the group really is still only moving around issues under (a), whether in asserting them or denying them. It is because of being caught in this negative situation that we are not making progress.
I think you misunderstand the nature of the experience-gathering effort, perhaps because you do not understand the concerns that stakeholders have about governing law and venue. You also ignore the considerable amount of discussion regarding these issues; perhaps this took place while you were disengaged from the work of this group. I suggest you go back and review email traffic and meeting transcripts before the last 3 weeks.
If we indeed at this stage are for collecting information about the nature of the jurisdiction issue in its three way categorisation, lets be open to collecting information, and compiling it, rather than focus on limiting the exercise. After all, what are we afraid of? It is not that hundreds of responses will come to our questionnaire that we will simply not be able to deal with! I can safely put the outer limit at 25, and that is pretty generous. We can just ignore what we find not of relevance.
We are not "collecting information about the nature of the jurisdiction issue in its three way categorisation." We are seeking to collect actual experiences that people and entities have had where "ICANN's jurisdiction" has come into play, based on the discussion on the prior call of this group and the questions drafted in conformance with the plan on that call. I've suggested some revisions to those questions. Other than co-opting the definition of "ICANN's jurisdiction" from that suggestion in order to argue in favor of your agenda, you have not responded to those edits.
But before going out of the group, I will like this group to make some clear enunciation of the categories (b) and (c), with problem statement, actual issues, and likely directions of resolution. And while doing that, lets not try and stop progress in one area where some progress is being made, which is Greg's (a) above. We need to get out of a negative mindset that this group seem to have got struck into.
i do not perceive any "negative mindset" in this group, unless you are referring to disagreement with your agenda, which is not going to replace the ongoing work of the subgroup. I'll just point out one more time that the statement that ICANN is "subject to U.S. and California law as a result of its incorporation and location" is a fact statement and not a problem statement or a statement of this group's agenda, and that the unmoderated discussion on this list that ranged off the path of our work is not what we are working on. I'm sorry if allowing a little freedom on the list to detour from the work of the group, during an otherwise fallow time for the work of the group, has been misconstrued as putting that discussion on our agenda. Hopefully that misunderstanding has now been put to rest.
Greg
parminder
On Monday 28 November 2016 07:42 AM, Greg Shatan wrote:
All,
This discussion has ranged well beyond the current stage of our work and potentially beyond the scope of this subgroup; we need to refocus.
After we "froze" the working documents prior to Hyderabad, the rapporteurs decided to allow the mailing list to "run free" for a while, without regard to our work plan, the active work we're engaged in, or the scope and remit of this subgroup. However, neither this subgroup or this mailing list is intended to be a general discussion of anything related to "ICANN" and "jurisdiction." This is a working (sub)group and this email list needs to be devoted to the work before the group.
As a general reminder, the overall working method we arrived at was first to look for _issues_; after that was done, we would move on to look (if issues were identified and agreed) at potential _remedies_.
To be more specific, our plan is to first identify the "influences" of the "multiple layers" of ICANN's jurisdiction(s). These influences may be positive (e.g., advantages), neutral or negative (e.g., issues). As agreed by the subgroup, we are currently discussing and trying to answer the following question /"What is the influence of ICANN’s existing jurisdiction(s) relating to resolution of disputes (i.e., choice of law and venue) on the actual operation of ICANN’s policies and accountability mechanisms?/"
We have been discussing possible influences, but these have been "hypotheticals" -- proposed by members of this subgroup. However, we've noticed that we are short on information about actual occurrences. As a result, at our last meeting we decided to make a factual inquiry to seek actual experiences that people and entities have had where ICANN's current jurisdictional set-up came into play. That is where we currently stand.
After we identify and agree on issues and concerns (both hypothetical and actual), our work will turn to identifying and analyzing potential remedies for the listed issues/concerns, including any potential consequences or risks associated with those remedies. As discussed, the remedies need to be directly related to, and solutions for, the identified issues/concerns. We are not up to the remedies stage in our work, and we won't be until we identify and coming to consensus on specific issues. Any discussion of remedies now is premature, and to the extent it displaces discussion of influences and issues, it's actually delaying our work.
Immunity falls into the category of potential "remedies." As such, it is premature to discuss it at this stage in our work. If and when we identify issues/concerns, we can look at potential remedies. If appropriate (i.e., if it appears to be a remedy to an identified issue), we can discuss "immunity" at that time. However, now is not the time for that discussion, and we need to put that discussion aside and focus on the work that is actually in front of us.
Similarly, I believe that we need to keep our fact solicitation focused as well. We are looking for actual experiences to supplement the apparently limited experiences of those in the group. When it comes to questions of opinion or speculation, that is properly the work of this subgroup, and should be part of our deliberative process. We will get further input from the CCWG plenary and then through public comment.
Let's follow our work plan and focus on the task in front of us. That's how we will get through the work. Thank you.
Greg Shatan co-rapporteur
On Sun, Nov 27, 2016 at 1:43 AM, parminder <parminder@itforchange.net <mailto:parminder@itforchange.net>> wrote:
On Saturday 26 November 2016 10:07 PM, Mueller, Milton L wrote: > > I don't object to "efforts to look for immunity from laws that affect ICANN's ability to serve clients internationally." I just don't think modifying the current questions is the right way to go about that. You are mixing up two distinct efforts. One is an attempt to gather facts and cases about real, existing issues. The other is an attempt to erect new safeguards to guard against possible but hypothetical problems. The hypotheticals can be discussed and developed within the jurisdiction subgroup, there is no need to circulate questions about them. > > If you mix those two things up you will undermine and possibly destroy the value of the first, and possibly both, because it will not be clear what we are asking people. So, please, keep our questions focused and clear, and pursue other agendas in other ways.
Let both kinds of agendas be pursued in the say way, or equal opportunity be given to both .... We can have a questionnaire in two parts, and in any case, the nature of the question will make very clear what is being sought by which question.
p
> > --MM > >> I do not think that this immunity can be gained in the WS2 timeframe, but I do >> believe that WS2 could initiate yet another CCWG effort to work on that, if the >> consensus of the group were to do so. >> >> But first we need more of the background information, the so-called facts. We >> have to remember that with NTIA oversight, the application of some laws may >> have been different than it might be going forward. We need to understand >> whether that is the case or not, and whether there are laws that could now be >> applied to ICANN's activities that were not applied before. >> >> avri >> >> >> >> On 26-Nov-16 05:08, parminder wrote: >>> >>> >>> On Saturday 26 November 2016 01:55 PM, Mueller, Milton L wrote: >>>> Sorry, Parminder, I see this as a request for opinions, not facts. >>>> The whole point of this exercise is to gain specific factual cases >>>> that show actual issues, not to provide people with an excuse to >>>> complain about what the "think are the problems." I would reject >>>> adding such a question to the list >>>> >>> Milton, you probably mean, you are against adding such a question :). >>> I dont see you have any authority to reject anything any more than I >>> have to reject your original formulation. >>> >>> Was not the community accountability mechanism instituted just on the >>> basis of "what people think are the problems"? I saw no efforts to >>> gather facts with surveys like >>> >>> "1. Are you aware of any instance in which anyone's business, >>> privacy, or ability to use or purchase DNS-related services, has been >>> affected by absence of a community accountability mechanism ? >>> >>> If any such known 'facts' exist I am unaware of them and will like to >>> know. >>> >>> In case of the question of ICANN's jurisdiction of incorporation >>> analytical facts are rather more evident, as raised in the civil >>> society statement. >>> >>> The process we employ can lead towards certain kind of outcomes rather >>> than others. And I see this particular process being aimed at >>> foreclosing the jurisdiction of incorporation question. This is fact >>> the "application of public laws question" because immunity from such >>> application can be obtained even without changing ICANN's place of >>> jurisdiction. >>> >>> Meaning ICANN can stay incorporated as US non profit in California, >>> and it exempted from application form various public laws as per the >>> US immunity act that I cited. I also said that, as far as I can >>> understand, it is possible to keep the private disputes arising from >>> ICANN's organisational system, including those about enforcement of >>> community powers, to be subject to US/ Californian law, strictly only >>> for such dispute resolution as per ICANN bylaws. We need to hear from >>> this group why this is not possible or not preferred... >>> >>> parminder >>> >>> >>>> >>>> *From:*ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> >>>> [mailto:ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org>] *On Behalf Of *parminder >>>> *Sent:* Wednesday, November 23, 2016 11:54 PM >>>> *To:* ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> >>>> *Subject:* Re: [Ws2-jurisdiction] first draft of fact solicitation >>>> questions >>>> >>>> >>>> >>>> I will like to add a general question to the below: >>>> >>>> What do you think are the problems, if any, with continued >>>> jurisdiction of the US state over ICANN, as a US non-profit? Please >>>> justify your response with appropriate examples, analysis, etc. >>>> Especially, if there are existing and past instances that highlight >>>> such problems please indicate them. >>>> >>>> parminder >>>> >>>> >>>> >>>> On Wednesday 23 November 2016 09:50 PM, Mike Rodenbaugh wrote: >>>> >>>> These seem well-stated, except perhaps they should not be looking >>>> only for personal experience, but broaden the request to seek any >>>> experience the responder is aware of? So I suggest something like: >>>> >>>> >>>> >>>> 1. Are you aware of any instance in which anyone's >>>> business, privacy, or ability to use or purchase DNS-related >>>> services, has been affected by ICANN's jurisdiction in any way? >>>> >>>> If the answer is Yes, please describe specific cases or >>>> incidents, including the date, the parties involved, and links to >>>> any relevant documents. >>>> >>>> 2. Are you aware of any instance in which ICANN's >>>> jurisdiction affected any dispute resolution process or >>>> litigation related to domain names? >>>> >>>> If the answer is Yes, please describe specific cases or >>>> incidents, including the date, the parties involved, and links to >>>> any relevant documents. >>>> >>>> >>>> >>>> >>>> >>>> >>>> Mike Rodenbaugh >>>> >>>> RODENBAUGH LAW >>>> >>>> tel/fax: +1.415.738.8087 <tel:%2B1.415.738.8087> >>>> >>>> http://rodenbaugh.com >>>> >>>> >>>> >>>> On Wed, Nov 23, 2016 at 6:47 AM, Mueller, Milton L >>>> <milton@gatech.edu <mailto:milton@gatech.edu> <mailto:milton@gatech.edu <mailto:milton@gatech.edu>>> wrote: >>>> >>>> CW and I have agreed on the following draft: >>>> >>>> >>>> >>>> >>>> >>>> *Request for stakeholder input on jurisdiction issues* >>>> >>>> >>>> >>>> The Jurisdiction subgroup of the CCWG Accountability is >>>> asking for the community to provide factual input on the >>>> following questions: >>>> >>>> >>>> >>>> 1. Has your business, your privacy or your ability to >>>> use or purchase DNS-related services, been affected by >>>> ICANN's jurisdiction in any way? >>>> >>>> If the answer is Yes, please describe specific cases or >>>> incidents, including the date, the parties involved, and >>>> links to any relevant documents. >>>> >>>> >>>> >>>> 2. Has ICANN's jurisdiction affected any dispute >>>> resolution process or litigation related to domain names you >>>> have been involved in? >>>> >>>> If the answer is Yes, please describe specific cases or >>>> incidents, including the date, the parties involved, and >>>> links to any relevant documents. >>>> >>>> >>>> >>>> >>>> >>>> >>>> >>>> Dr. Milton L. Mueller >>>> >>>> Professor, School of Public Policy >>>> >>>> Georgia Institute of Technology >>>> >>>> >>>> >>>> >>>> >>>> >>>> _______________________________________________ >>>> Ws2-jurisdiction mailing list >>>> Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> <mailto: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> >>>> >>>> >>>> >>>> >>>> >>>> >>>> _______________________________________________ >>>> >>>> Ws2-jurisdiction mailing list >>>> >>>> Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> <mailto: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> >>>> >>>> >>>> >>> >>> >>> _______________________________________________ >>> 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> >> >> >> --- >> This email has been checked for viruses by Avast antivirus software. >> https://www.avast.com/antivirus <https://www.avast.com/antivirus> >> >> _______________________________________________ >> 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> > _______________________________________________ > 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> >
_______________________________________________ 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>
_______________________________________________ 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>
_______________________________________________ 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>
The last email contained statements of my general discomfiture. More to a specific point: On Tuesday 29 November 2016 12:43 PM, Greg Shatan wrote:
SNIP I'll just point out one more time that the statement that ICANN is "subject to U.S. and California law as a result of its incorporation and location" is a fact statement and not a problem statement or a statement of this group's agenda, and that the unmoderated discussion on this list that ranged off the path of our work is not what we are working on. I'm sorry if allowing a little freedom on the list to detour from the work of the group, during an otherwise fallow time for the work of the group, has been misconstrued as putting that discussion on our agenda. Hopefully that misunderstanding has now been put to rest.
I read the above to say that the issues arising from ICANN being "subject to US and California law as a result of its incorporation and location" , or any kind of discussion on this, is not on the agenda of the group. (And that it was the inappropriate use by a few of some leeway and freedoms allowed by moderators of this group that allowed this agenda to be sneaked it, something which is to be remedied right away.) I am confounded. I thought we were pursing all kinds of influences that ICANN's jurisdiction has on its polices and operations, but at this stage not necessarily looking to remedies ( it is a different matter that discussions on two things can never logically be fully separated.) Co-chairs, would you please make it fully clear what is and is not on the agenda of this group. parminder
Greg
parminder
On Monday 28 November 2016 07:42 AM, Greg Shatan wrote:
All,
This discussion has ranged well beyond the current stage of our work and potentially beyond the scope of this subgroup; we need to refocus.
After we "froze" the working documents prior to Hyderabad, the rapporteurs decided to allow the mailing list to "run free" for a while, without regard to our work plan, the active work we're engaged in, or the scope and remit of this subgroup. However, neither this subgroup or this mailing list is intended to be a general discussion of anything related to "ICANN" and "jurisdiction." This is a working (sub)group and this email list needs to be devoted to the work before the group.
As a general reminder, the overall working method we arrived at was first to look for _issues_; after that was done, we would move on to look (if issues were identified and agreed) at potential _remedies_.
To be more specific, our plan is to first identify the "influences" of the "multiple layers" of ICANN's jurisdiction(s). These influences may be positive (e.g., advantages), neutral or negative (e.g., issues). As agreed by the subgroup, we are currently discussing and trying to answer the following question /"What is the influence of ICANN’s existing jurisdiction(s) relating to resolution of disputes (i.e., choice of law and venue) on the actual operation of ICANN’s policies and accountability mechanisms?/"
We have been discussing possible influences, but these have been "hypotheticals" -- proposed by members of this subgroup. However, we've noticed that we are short on information about actual occurrences. As a result, at our last meeting we decided to make a factual inquiry to seek actual experiences that people and entities have had where ICANN's current jurisdictional set-up came into play. That is where we currently stand.
After we identify and agree on issues and concerns (both hypothetical and actual), our work will turn to identifying and analyzing potential remedies for the listed issues/concerns, including any potential consequences or risks associated with those remedies. As discussed, the remedies need to be directly related to, and solutions for, the identified issues/concerns. We are not up to the remedies stage in our work, and we won't be until we identify and coming to consensus on specific issues. Any discussion of remedies now is premature, and to the extent it displaces discussion of influences and issues, it's actually delaying our work.
Immunity falls into the category of potential "remedies." As such, it is premature to discuss it at this stage in our work. If and when we identify issues/concerns, we can look at potential remedies. If appropriate (i.e., if it appears to be a remedy to an identified issue), we can discuss "immunity" at that time. However, now is not the time for that discussion, and we need to put that discussion aside and focus on the work that is actually in front of us.
Similarly, I believe that we need to keep our fact solicitation focused as well. We are looking for actual experiences to supplement the apparently limited experiences of those in the group. When it comes to questions of opinion or speculation, that is properly the work of this subgroup, and should be part of our deliberative process. We will get further input from the CCWG plenary and then through public comment.
Let's follow our work plan and focus on the task in front of us. That's how we will get through the work. Thank you.
Greg Shatan co-rapporteur
On Sun, Nov 27, 2016 at 1:43 AM, parminder <parminder@itforchange.net <mailto:parminder@itforchange.net>> wrote:
On Saturday 26 November 2016 10:07 PM, Mueller, Milton L wrote: > > I don't object to "efforts to look for immunity from laws that affect ICANN's ability to serve clients internationally." I just don't think modifying the current questions is the right way to go about that. You are mixing up two distinct efforts. One is an attempt to gather facts and cases about real, existing issues. The other is an attempt to erect new safeguards to guard against possible but hypothetical problems. The hypotheticals can be discussed and developed within the jurisdiction subgroup, there is no need to circulate questions about them. > > If you mix those two things up you will undermine and possibly destroy the value of the first, and possibly both, because it will not be clear what we are asking people. So, please, keep our questions focused and clear, and pursue other agendas in other ways.
Let both kinds of agendas be pursued in the say way, or equal opportunity be given to both .... We can have a questionnaire in two parts, and in any case, the nature of the question will make very clear what is being sought by which question.
p
> > --MM > >> I do not think that this immunity can be gained in the WS2 timeframe, but I do >> believe that WS2 could initiate yet another CCWG effort to work on that, if the >> consensus of the group were to do so. >> >> But first we need more of the background information, the so-called facts. We >> have to remember that with NTIA oversight, the application of some laws may >> have been different than it might be going forward. We need to understand >> whether that is the case or not, and whether there are laws that could now be >> applied to ICANN's activities that were not applied before. >> >> avri >> >> >> >> On 26-Nov-16 05:08, parminder wrote: >>> >>> >>> On Saturday 26 November 2016 01:55 PM, Mueller, Milton L wrote: >>>> Sorry, Parminder, I see this as a request for opinions, not facts. >>>> The whole point of this exercise is to gain specific factual cases >>>> that show actual issues, not to provide people with an excuse to >>>> complain about what the "think are the problems." I would reject >>>> adding such a question to the list >>>> >>> Milton, you probably mean, you are against adding such a question :). >>> I dont see you have any authority to reject anything any more than I >>> have to reject your original formulation. >>> >>> Was not the community accountability mechanism instituted just on the >>> basis of "what people think are the problems"? I saw no efforts to >>> gather facts with surveys like >>> >>> "1. Are you aware of any instance in which anyone's business, >>> privacy, or ability to use or purchase DNS-related services, has been >>> affected by absence of a community accountability mechanism ? >>> >>> If any such known 'facts' exist I am unaware of them and will like to >>> know. >>> >>> In case of the question of ICANN's jurisdiction of incorporation >>> analytical facts are rather more evident, as raised in the civil >>> society statement. >>> >>> The process we employ can lead towards certain kind of outcomes rather >>> than others. And I see this particular process being aimed at >>> foreclosing the jurisdiction of incorporation question. This is fact >>> the "application of public laws question" because immunity from such >>> application can be obtained even without changing ICANN's place of >>> jurisdiction. >>> >>> Meaning ICANN can stay incorporated as US non profit in California, >>> and it exempted from application form various public laws as per the >>> US immunity act that I cited. I also said that, as far as I can >>> understand, it is possible to keep the private disputes arising from >>> ICANN's organisational system, including those about enforcement of >>> community powers, to be subject to US/ Californian law, strictly only >>> for such dispute resolution as per ICANN bylaws. We need to hear from >>> this group why this is not possible or not preferred... >>> >>> parminder >>> >>> >>>> >>>> *From:*ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> >>>> [mailto:ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org>] *On Behalf Of *parminder >>>> *Sent:* Wednesday, November 23, 2016 11:54 PM >>>> *To:* ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> >>>> *Subject:* Re: [Ws2-jurisdiction] first draft of fact solicitation >>>> questions >>>> >>>> >>>> >>>> I will like to add a general question to the below: >>>> >>>> What do you think are the problems, if any, with continued >>>> jurisdiction of the US state over ICANN, as a US non-profit? Please >>>> justify your response with appropriate examples, analysis, etc. >>>> Especially, if there are existing and past instances that highlight >>>> such problems please indicate them. >>>> >>>> parminder >>>> >>>> >>>> >>>> On Wednesday 23 November 2016 09:50 PM, Mike Rodenbaugh wrote: >>>> >>>> These seem well-stated, except perhaps they should not be looking >>>> only for personal experience, but broaden the request to seek any >>>> experience the responder is aware of? So I suggest something like: >>>> >>>> >>>> >>>> 1. Are you aware of any instance in which anyone's >>>> business, privacy, or ability to use or purchase DNS-related >>>> services, has been affected by ICANN's jurisdiction in any way? >>>> >>>> If the answer is Yes, please describe specific cases or >>>> incidents, including the date, the parties involved, and links to >>>> any relevant documents. >>>> >>>> 2. Are you aware of any instance in which ICANN's >>>> jurisdiction affected any dispute resolution process or >>>> litigation related to domain names? >>>> >>>> If the answer is Yes, please describe specific cases or >>>> incidents, including the date, the parties involved, and links to >>>> any relevant documents. >>>> >>>> >>>> >>>> >>>> >>>> >>>> Mike Rodenbaugh >>>> >>>> RODENBAUGH LAW >>>> >>>> tel/fax: +1.415.738.8087 <tel:%2B1.415.738.8087> >>>> >>>> http://rodenbaugh.com >>>> >>>> >>>> >>>> On Wed, Nov 23, 2016 at 6:47 AM, Mueller, Milton L >>>> <milton@gatech.edu <mailto:milton@gatech.edu> <mailto:milton@gatech.edu <mailto:milton@gatech.edu>>> wrote: >>>> >>>> CW and I have agreed on the following draft: >>>> >>>> >>>> >>>> >>>> >>>> *Request for stakeholder input on jurisdiction issues* >>>> >>>> >>>> >>>> The Jurisdiction subgroup of the CCWG Accountability is >>>> asking for the community to provide factual input on the >>>> following questions: >>>> >>>> >>>> >>>> 1. Has your business, your privacy or your ability to >>>> use or purchase DNS-related services, been affected by >>>> ICANN's jurisdiction in any way? >>>> >>>> If the answer is Yes, please describe specific cases or >>>> incidents, including the date, the parties involved, and >>>> links to any relevant documents. >>>> >>>> >>>> >>>> 2. Has ICANN's jurisdiction affected any dispute >>>> resolution process or litigation related to domain names you >>>> have been involved in? >>>> >>>> If the answer is Yes, please describe specific cases or >>>> incidents, including the date, the parties involved, and >>>> links to any relevant documents. >>>> >>>> >>>> >>>> >>>> >>>> >>>> >>>> Dr. Milton L. Mueller >>>> >>>> Professor, School of Public Policy >>>> >>>> Georgia Institute of Technology >>>> >>>> >>>> >>>> >>>> >>>> >>>> _______________________________________________ >>>> Ws2-jurisdiction mailing list >>>> Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> <mailto: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> >>>> >>>> >>>> >>>> >>>> >>>> >>>> _______________________________________________ >>>> >>>> Ws2-jurisdiction mailing list >>>> >>>> Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> <mailto: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> >>>> >>>> >>>> >>> >>> >>> _______________________________________________ >>> 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> >> >> >> --- >> This email has been checked for viruses by Avast antivirus software. >> https://www.avast.com/antivirus <https://www.avast.com/antivirus> >> >> _______________________________________________ >> 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> > _______________________________________________ > 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> >
_______________________________________________ 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>
_______________________________________________ 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>
_______________________________________________ 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>
All, I think that we risk losing sight of a few key facts here, given the length and volume of this email chain: 1. *We already have a definite scope for this sub-group* - "What is the influence of ICANN’s existing jurisdiction(s) relating to resolution of disputes (i.e., choice of law and venue) on the actual operation of ICANN’s policies and accountability mechanisms?". Engaging with this question requires us to unpack what 'jurisdiction' means in this context, which is why we are considering the 'multiple layers of jurisdiction'. The scope of the subgroup, to the extent set out above, comes from the document which created this group, the CCWG WS1 report. The subgroup did not decide its own scope, and is not absolutely free to do so. At the same time, none of this precludes consideration of any specific *solutions* to problems that may be identified in this process. *No potential solution has been taken off the table.* 2. The questionnaire which has sparked this round of discussion, was intended (and continues to be intended) as a tool to assist us in gathering facts. It is *in addition* to everything else we are doing. *The questions or their responses do not circumscribe or limit the work of the subgroup in any way.* Participants in the subgroup remain free to otherwise bring in facts and problem statements relevant to our scope. The questionnaire was never intended to be all-encompassing - therefore faulting it for not being so, would miss the point somewhat. 3. I think it's important for all of us to focus on process. Identifying problems first, and coming to solutions later, is a logical and constructive way to move forward. It's not too difficult to tell one apart from the other, and it is possible to consider them separately. Here's wishing all of you a good call. Regards, Vinay On 29 November 2016 at 15:29, parminder <parminder@itforchange.net> wrote:
The last email contained statements of my general discomfiture.
More to a specific point: On Tuesday 29 November 2016 12:43 PM, Greg Shatan wrote:
SNIP I'll just point out one more time that the statement that ICANN is "subject to U.S. and California law as a result of its incorporation and location" is a fact statement and not a problem statement or a statement of this group's agenda, and that the unmoderated discussion on this list that ranged off the path of our work is not what we are working on. I'm sorry if allowing a little freedom on the list to detour from the work of the group, during an otherwise fallow time for the work of the group, has been misconstrued as putting that discussion on our agenda. Hopefully that misunderstanding has now been put to rest.
I read the above to say that the issues arising from ICANN being "subject to US and California law as a result of its incorporation and location" , or any kind of discussion on this, is not on the agenda of the group.
(And that it was the inappropriate use by a few of some leeway and freedoms allowed by moderators of this group that allowed this agenda to be sneaked it, something which is to be remedied right away.)
I am confounded. I thought we were pursing all kinds of influences that ICANN's jurisdiction has on its polices and operations, but at this stage not necessarily looking to remedies ( it is a different matter that discussions on two things can never logically be fully separated.)
Co-chairs, would you please make it fully clear what is and is not on the agenda of this group.
parminder
Greg
parminder On Monday 28 November 2016 07:42 AM, Greg Shatan wrote:
All,
This discussion has ranged well beyond the current stage of our work and potentially beyond the scope of this subgroup; we need to refocus.
After we "froze" the working documents prior to Hyderabad, the rapporteurs decided to allow the mailing list to "run free" for a while, without regard to our work plan, the active work we're engaged in, or the scope and remit of this subgroup. However, neither this subgroup or this mailing list is intended to be a general discussion of anything related to "ICANN" and "jurisdiction." This is a working (sub)group and this email list needs to be devoted to the work before the group.
As a general reminder, the overall working method we arrived at was first to look for *issues*; after that was done, we would move on to look (if issues were identified and agreed) at potential *remedies*.
To be more specific, our plan is to first identify the "influences" of the "multiple layers" of ICANN's jurisdiction(s). These influences may be positive (e.g., advantages), neutral or negative (e.g., issues). As agreed by the subgroup, we are currently discussing and trying to answer the following question *"What is the influence of ICANN’s existing jurisdiction(s) relating to resolution of disputes (i.e., choice of law and venue) on the actual operation of ICANN’s policies and accountability mechanisms?*"
We have been discussing possible influences, but these have been "hypotheticals" -- proposed by members of this subgroup. However, we've noticed that we are short on information about actual occurrences. As a result, at our last meeting we decided to make a factual inquiry to seek actual experiences that people and entities have had where ICANN's current jurisdictional set-up came into play. That is where we currently stand.
After we identify and agree on issues and concerns (both hypothetical and actual), our work will turn to identifying and analyzing potential remedies for the listed issues/concerns, including any potential consequences or risks associated with those remedies. As discussed, the remedies need to be directly related to, and solutions for, the identified issues/concerns. We are not up to the remedies stage in our work, and we won't be until we identify and coming to consensus on specific issues. Any discussion of remedies now is premature, and to the extent it displaces discussion of influences and issues, it's actually delaying our work.
Immunity falls into the category of potential "remedies." As such, it is premature to discuss it at this stage in our work. If and when we identify issues/concerns, we can look at potential remedies. If appropriate (i.e., if it appears to be a remedy to an identified issue), we can discuss "immunity" at that time. However, now is not the time for that discussion, and we need to put that discussion aside and focus on the work that is actually in front of us.
Similarly, I believe that we need to keep our fact solicitation focused as well. We are looking for actual experiences to supplement the apparently limited experiences of those in the group. When it comes to questions of opinion or speculation, that is properly the work of this subgroup, and should be part of our deliberative process. We will get further input from the CCWG plenary and then through public comment.
Let's follow our work plan and focus on the task in front of us. That's how we will get through the work. Thank you.
Greg Shatan co-rapporteur
On Sun, Nov 27, 2016 at 1:43 AM, parminder <parminder@itforchange.net> wrote:
On Saturday 26 November 2016 10:07 PM, Mueller, Milton L wrote:
I don't object to "efforts to look for immunity from laws that affect
ICANN's ability to serve clients internationally." I just don't think modifying the current questions is the right way to go about that. You are mixing up two distinct efforts. One is an attempt to gather facts and cases about real, existing issues. The other is an attempt to erect new safeguards to guard against possible but hypothetical problems. The hypotheticals can be discussed and developed within the jurisdiction subgroup, there is no need to circulate questions about them.
If you mix those two things up you will undermine and possibly destroy
the value of the first, and possibly both, because it will not be clear what we are asking people. So, please, keep our questions focused and clear, and pursue other agendas in other ways.
Let both kinds of agendas be pursued in the say way, or equal opportunity be given to both .... We can have a questionnaire in two parts, and in any case, the nature of the question will make very clear what is being sought by which question.
p
--MM
I do not think that this immunity can be gained in the WS2 timeframe,
but I do
believe that WS2 could initiate yet another CCWG effort to work on that, if the consensus of the group were to do so.
But first we need more of the background information, the so-called facts. We have to remember that with NTIA oversight, the application of some laws may have been different than it might be going forward. We need to understand whether that is the case or not, and whether there are laws that could now be applied to ICANN's activities that were not applied before.
avri
On 26-Nov-16 05:08, parminder wrote:
On Saturday 26 November 2016 01:55 PM, Mueller, Milton L wrote: > Sorry, Parminder, I see this as a request for opinions, not facts. > The whole point of this exercise is to gain specific factual cases > that show actual issues, not to provide people with an excuse to > complain about what the "think are the problems." I would reject > adding such a question to the list > Milton, you probably mean, you are against adding such a question
:).
I dont see you have any authority to reject anything any more than I have to reject your original formulation.
Was not the community accountability mechanism instituted just on the basis of "what people think are the problems"? I saw no efforts to gather facts with surveys like
"1. Are you aware of any instance in which anyone's business, privacy, or ability to use or purchase DNS-related services, has been affected by absence of a community accountability mechanism ?
If any such known 'facts' exist I am unaware of them and will like to know.
In case of the question of ICANN's jurisdiction of incorporation analytical facts are rather more evident, as raised in the civil society statement.
The process we employ can lead towards certain kind of outcomes rather than others. And I see this particular process being aimed at foreclosing the jurisdiction of incorporation question. This is fact the "application of public laws question" because immunity from such application can be obtained even without changing ICANN's place of jurisdiction.
Meaning ICANN can stay incorporated as US non profit in California, and it exempted from application form various public laws as per the US immunity act that I cited. I also said that, as far as I can understand, it is possible to keep the private disputes arising from ICANN's organisational system, including those about enforcement of community powers, to be subject to US/ Californian law, strictly only for such dispute resolution as per ICANN bylaws. We need to hear from this group why this is not possible or not preferred...
parminder
> > *From:*ws2-jurisdiction-bounces@icann.org > [mailto:ws2-jurisdiction-bounces@icann.org] *On Behalf Of *parminder > *Sent:* Wednesday, November 23, 2016 11:54 PM > *To:* ws2-jurisdiction@icann.org > *Subject:* Re: [Ws2-jurisdiction] first draft of fact solicitation > questions > > > > I will like to add a general question to the below: > > What do you think are the problems, if any, with continued > jurisdiction of the US state over ICANN, as a US non-profit? Please > justify your response with appropriate examples, analysis, etc. > Especially, if there are existing and past instances that highlight > such problems please indicate them. > > parminder > > > > On Wednesday 23 November 2016 09:50 PM, Mike Rodenbaugh wrote: > > These seem well-stated, except perhaps they should not be looking > only for personal experience, but broaden the request to seek any > experience the responder is aware of? So I suggest something like: > > > > 1. Are you aware of any instance in which anyone's > business, privacy, or ability to use or purchase DNS-related > services, has been affected by ICANN's jurisdiction in any way? > > If the answer is Yes, please describe specific cases or > incidents, including the date, the parties involved, and links to > any relevant documents. > > 2. Are you aware of any instance in which ICANN's > jurisdiction affected any dispute resolution process or > litigation related to domain names? > > If the answer is Yes, please describe specific cases or > incidents, including the date, the parties involved, and links to > any relevant documents. > > > > > > > Mike Rodenbaugh > > RODENBAUGH LAW > > tel/fax: +1.415.738.8087 > > http://rodenbaugh.com > > > > On Wed, Nov 23, 2016 at 6:47 AM, Mueller, Milton L > <milton@gatech.edu <mailto:milton@gatech.edu>> wrote: > > CW and I have agreed on the following draft: > > > > > > *Request for stakeholder input on jurisdiction issues* > > > > The Jurisdiction subgroup of the CCWG Accountability is > asking for the community to provide factual input on the > following questions: > > > > 1. Has your business, your privacy or your ability to > use or purchase DNS-related services, been affected by > ICANN's jurisdiction in any way? > > If the answer is Yes, please describe specific cases or > incidents, including the date, the parties involved, and > links to any relevant documents. > > > > 2. Has ICANN's jurisdiction affected any dispute > resolution process or litigation related to domain names you > have been involved in? > > If the answer is Yes, please describe specific cases or > incidents, including the date, the parties involved, and > links to any relevant documents. > > > > > > > > Dr. Milton L. Mueller > > Professor, School of Public Policy > > Georgia Institute of Technology > > > > > > > _______________________________________________ > 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 > > >
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
--- This email has been checked for viruses by Avast antivirus software. https://www.avast.com/antivirus
_______________________________________________ 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
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
_______________________________________________ Ws2-jurisdiction mailing listWs2-jurisdiction@icann.orghttps://mm.icann.org/mailman/listinfo/ws2-jurisdiction
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/l istinfo/ws2-jurisdiction
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
On Tuesday 29 November 2016 06:28 PM, Vinay Kesari wrote:
All,
I think that we risk losing sight of a few key facts here, given the length and volume of this email chain:
1. _We already have a definite scope for this sub-group_ - "What is the influence of ICANN’s existing jurisdiction(s) relating to resolution of disputes (i.e., choice of law and venue) on the actual operation of ICANN’s policies and accountability mechanisms?".
Dear Vinay, thanks for this note. Can you please tell where did you pick up the above text under quotation marks, as describing the definite scope for the sub-group. My question is sincere and genuine. I really want to know clearly what is in scope and what not. I looked up Annex 12 but did not find this sentence there.
Engaging with this question requires us to unpack what 'jurisdiction' means in this context, which is why we are considering the 'multiple layers of jurisdiction'.
In your above definition of scope, "choice of law, venue' is clearly mentioned, seemingly as an essential definitional part. This term 'choice of law/ venue' pertains only to one layer of jurisdiction, even as such layers are described in Annex 12 as well in the current google doc on layers of jurisdiction that we are working on. I call it the private law part, which is about private contracts as developed by contracting parties. Only in this regard 'choice of law/ venue' is meaningful. It is not meaningful for application of public law, those laws about which there is no choice available to any party - it is decided by place of incorporation/ location.
The scope of the subgroup, to the extent set out above, comes from the document which created this group, the CCWG WS1 report. The subgroup did not decide its own scope, and is not absolutely free to do so.
Is there any other doc in this regard than Annex 12? Again, a sincere question. If the scope of this group indeed comes from the sentence you quoted, I see it only to cover private law as applicable to contracts. Then the scope of this group simply does not cover various public laws, about which legal persons existing within territorial limits of a state just have no choice of law, these laws necessarily apply. Is this indeed is a fact, let it then be made clear. I asked exactly this same question at the physical meeting in Hyderabad. I thought that the answer by Greg and CCWG chair indicated that public law jurisdiction is within scope. But this is now again thrown in doubt. All, Speaking of facts, lets us first get this fact clear -- is public law jurisdiction - compulsory ( no choice) jurisdiction of the place of incorporation/ physical location, where no choice of law/ venue is available - of ICANN within scope of this group or not? I think we should not proceed further without getting this fact right, about our own selves, making it very very clear -- and have a common understanding of it. If we do so, a lot of shadow boxing here will stop, which happens because of different conceptions of what exactly we are doing here. So, arguments go simply past one another. And I think this needs to stop for this group to make any progress at all. To exemplify from today's call. I was surprised to hear a few people say that we need to reach out only to the DNS industry, or thereabout. But now I can understand that if the remit of the group is only such law where choice of law/ venue is available, meaning contracts etc, of course this mostly only covers the interests of parties directly entering such contracts, which is the DNS industry. Some people like me, on the other hand, are here only with a wider public interest point of view. I have nothing against the concerns of the DNS industry but that kind of thing simply isnt what I, my organisation, and networks that I work with, have any interest in. I come with an interest in wider public interest issues, which really is about public laws that get applied to ICANN activities, where choice of law/ venue is not available So, both sides are right, from where they stand, and how they see things. It is for the group, led by the chairs, to make it fully clear what is in scope and what not. If public law, or such law with no choice of law/ venue, is indeed not in scope, let this be made clear upfront. That will solve a lot of things. However, if public law, or such law where choice of law/ venue is definitionally not available, is within scope, then let it "fully and completely" be in scope. And then let us not drag our feet doing what we need to do, which requires a different approach from an individual/ private interests based approach. I think this lack of clear resolution of what is in scope and what out is also behind the contestations about the questionnaire. If we resolve the root cause, we will be able to make progress. Again, what i am asking is, let us make fully clear whether public law issues (where no choice of law is available) are in scope, or only private law area (where choice of law/ venue is available to the involved parties) is in scope. No point making unending arguments based on different understanding of the scope of the group. parminder
At the same time, none of this precludes consideration of any specific _solutions_ to problems that may be identified in this process. _No potential solution has been taken off the table._
2. The questionnaire which has sparked this round of discussion, was intended (and continues to be intended) as a tool to assist us in gathering facts. It is _in addition_ to everything else we are doing. *_The questions or their responses do not circumscribe or limit the work of the subgroup in any way_.* Participants in the subgroup remain free to otherwise bring in facts and problem statements relevant to our scope. The questionnaire was never intended to be all-encompassing - therefore faulting it for not being so, would miss the point somewhat.
3. I think it's important for all of us to focus on process. Identifying problems first, and coming to solutions later, is a logical and constructive way to move forward. It's not too difficult to tell one apart from the other, and it is possible to consider them separately.
Here's wishing all of you a good call.
Regards, Vinay
On 29 November 2016 at 15:29, parminder <parminder@itforchange.net <mailto:parminder@itforchange.net>> wrote:
The last email contained statements of my general discomfiture.
More to a specific point:
On Tuesday 29 November 2016 12:43 PM, Greg Shatan wrote:
SNIP I'll just point out one more time that the statement that ICANN is "subject to U.S. and California law as a result of its incorporation and location" is a fact statement and not a problem statement or a statement of this group's agenda, and that the unmoderated discussion on this list that ranged off the path of our work is not what we are working on. I'm sorry if allowing a little freedom on the list to detour from the work of the group, during an otherwise fallow time for the work of the group, has been misconstrued as putting that discussion on our agenda. Hopefully that misunderstanding has now been put to rest.
I read the above to say that the issues arising from ICANN being "subject to US and California law as a result of its incorporation and location" , or any kind of discussion on this, is not on the agenda of the group.
(And that it was the inappropriate use by a few of some leeway and freedoms allowed by moderators of this group that allowed this agenda to be sneaked it, something which is to be remedied right away.)
I am confounded. I thought we were pursing all kinds of influences that ICANN's jurisdiction has on its polices and operations, but at this stage not necessarily looking to remedies ( it is a different matter that discussions on two things can never logically be fully separated.)
Co-chairs, would you please make it fully clear what is and is not on the agenda of this group.
parminder
Greg
parminder
On Monday 28 November 2016 07:42 AM, Greg Shatan wrote:
All,
This discussion has ranged well beyond the current stage of our work and potentially beyond the scope of this subgroup; we need to refocus.
After we "froze" the working documents prior to Hyderabad, the rapporteurs decided to allow the mailing list to "run free" for a while, without regard to our work plan, the active work we're engaged in, or the scope and remit of this subgroup. However, neither this subgroup or this mailing list is intended to be a general discussion of anything related to "ICANN" and "jurisdiction." This is a working (sub)group and this email list needs to be devoted to the work before the group.
As a general reminder, the overall working method we arrived at was first to look for _issues_; after that was done, we would move on to look (if issues were identified and agreed) at potential _remedies_.
To be more specific, our plan is to first identify the "influences" of the "multiple layers" of ICANN's jurisdiction(s). These influences may be positive (e.g., advantages), neutral or negative (e.g., issues). As agreed by the subgroup, we are currently discussing and trying to answer the following question /"What is the influence of ICANN’s existing jurisdiction(s) relating to resolution of disputes (i.e., choice of law and venue) on the actual operation of ICANN’s policies and accountability mechanisms?/"
We have been discussing possible influences, but these have been "hypotheticals" -- proposed by members of this subgroup. However, we've noticed that we are short on information about actual occurrences. As a result, at our last meeting we decided to make a factual inquiry to seek actual experiences that people and entities have had where ICANN's current jurisdictional set-up came into play. That is where we currently stand.
After we identify and agree on issues and concerns (both hypothetical and actual), our work will turn to identifying and analyzing potential remedies for the listed issues/concerns, including any potential consequences or risks associated with those remedies. As discussed, the remedies need to be directly related to, and solutions for, the identified issues/concerns. We are not up to the remedies stage in our work, and we won't be until we identify and coming to consensus on specific issues. Any discussion of remedies now is premature, and to the extent it displaces discussion of influences and issues, it's actually delaying our work.
Immunity falls into the category of potential "remedies." As such, it is premature to discuss it at this stage in our work. If and when we identify issues/concerns, we can look at potential remedies. If appropriate (i.e., if it appears to be a remedy to an identified issue), we can discuss "immunity" at that time. However, now is not the time for that discussion, and we need to put that discussion aside and focus on the work that is actually in front of us.
Similarly, I believe that we need to keep our fact solicitation focused as well. We are looking for actual experiences to supplement the apparently limited experiences of those in the group. When it comes to questions of opinion or speculation, that is properly the work of this subgroup, and should be part of our deliberative process. We will get further input from the CCWG plenary and then through public comment.
Let's follow our work plan and focus on the task in front of us. That's how we will get through the work. Thank you.
Greg Shatan co-rapporteur
On Sun, Nov 27, 2016 at 1:43 AM, parminder <parminder@itforchange.net <mailto:parminder@itforchange.net>> wrote:
On Saturday 26 November 2016 10:07 PM, Mueller, Milton L wrote: > > I don't object to "efforts to look for immunity from laws that affect ICANN's ability to serve clients internationally." I just don't think modifying the current questions is the right way to go about that. You are mixing up two distinct efforts. One is an attempt to gather facts and cases about real, existing issues. The other is an attempt to erect new safeguards to guard against possible but hypothetical problems. The hypotheticals can be discussed and developed within the jurisdiction subgroup, there is no need to circulate questions about them. > > If you mix those two things up you will undermine and possibly destroy the value of the first, and possibly both, because it will not be clear what we are asking people. So, please, keep our questions focused and clear, and pursue other agendas in other ways.
Let both kinds of agendas be pursued in the say way, or equal opportunity be given to both .... We can have a questionnaire in two parts, and in any case, the nature of the question will make very clear what is being sought by which question.
p
> > --MM > >> I do not think that this immunity can be gained in the WS2 timeframe, but I do >> believe that WS2 could initiate yet another CCWG effort to work on that, if the >> consensus of the group were to do so. >> >> But first we need more of the background information, the so-called facts. We >> have to remember that with NTIA oversight, the application of some laws may >> have been different than it might be going forward. We need to understand >> whether that is the case or not, and whether there are laws that could now be >> applied to ICANN's activities that were not applied before. >> >> avri >> >> >> >> On 26-Nov-16 05:08, parminder wrote: >>> >>> >>> On Saturday 26 November 2016 01:55 PM, Mueller, Milton L wrote: >>>> Sorry, Parminder, I see this as a request for opinions, not facts. >>>> The whole point of this exercise is to gain specific factual cases >>>> that show actual issues, not to provide people with an excuse to >>>> complain about what the "think are the problems." I would reject >>>> adding such a question to the list >>>> >>> Milton, you probably mean, you are against adding such a question :). >>> I dont see you have any authority to reject anything any more than I >>> have to reject your original formulation. >>> >>> Was not the community accountability mechanism instituted just on the >>> basis of "what people think are the problems"? I saw no efforts to >>> gather facts with surveys like >>> >>> "1. Are you aware of any instance in which anyone's business, >>> privacy, or ability to use or purchase DNS-related services, has been >>> affected by absence of a community accountability mechanism ? >>> >>> If any such known 'facts' exist I am unaware of them and will like to >>> know. >>> >>> In case of the question of ICANN's jurisdiction of incorporation >>> analytical facts are rather more evident, as raised in the civil >>> society statement. >>> >>> The process we employ can lead towards certain kind of outcomes rather >>> than others. And I see this particular process being aimed at >>> foreclosing the jurisdiction of incorporation question. This is fact >>> the "application of public laws question" because immunity from such >>> application can be obtained even without changing ICANN's place of >>> jurisdiction. >>> >>> Meaning ICANN can stay incorporated as US non profit in California, >>> and it exempted from application form various public laws as per the >>> US immunity act that I cited. I also said that, as far as I can >>> understand, it is possible to keep the private disputes arising from >>> ICANN's organisational system, including those about enforcement of >>> community powers, to be subject to US/ Californian law, strictly only >>> for such dispute resolution as per ICANN bylaws. We need to hear from >>> this group why this is not possible or not preferred... >>> >>> parminder >>> >>> >>>> >>>> *From:*ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> >>>> [mailto:ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org>] *On Behalf Of *parminder >>>> *Sent:* Wednesday, November 23, 2016 11:54 PM >>>> *To:* ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> >>>> *Subject:* Re: [Ws2-jurisdiction] first draft of fact solicitation >>>> questions >>>> >>>> >>>> >>>> I will like to add a general question to the below: >>>> >>>> What do you think are the problems, if any, with continued >>>> jurisdiction of the US state over ICANN, as a US non-profit? Please >>>> justify your response with appropriate examples, analysis, etc. >>>> Especially, if there are existing and past instances that highlight >>>> such problems please indicate them. >>>> >>>> parminder >>>> >>>> >>>> >>>> On Wednesday 23 November 2016 09:50 PM, Mike Rodenbaugh wrote: >>>> >>>> These seem well-stated, except perhaps they should not be looking >>>> only for personal experience, but broaden the request to seek any >>>> experience the responder is aware of? So I suggest something like: >>>> >>>> >>>> >>>> 1. Are you aware of any instance in which anyone's >>>> business, privacy, or ability to use or purchase DNS-related >>>> services, has been affected by ICANN's jurisdiction in any way? >>>> >>>> If the answer is Yes, please describe specific cases or >>>> incidents, including the date, the parties involved, and links to >>>> any relevant documents. >>>> >>>> 2. Are you aware of any instance in which ICANN's >>>> jurisdiction affected any dispute resolution process or >>>> litigation related to domain names? >>>> >>>> If the answer is Yes, please describe specific cases or >>>> incidents, including the date, the parties involved, and links to >>>> any relevant documents. >>>> >>>> >>>> >>>> >>>> >>>> >>>> Mike Rodenbaugh >>>> >>>> RODENBAUGH LAW >>>> >>>> tel/fax: +1.415.738.8087 <tel:%2B1.415.738.8087> >>>> >>>> http://rodenbaugh.com >>>> >>>> >>>> >>>> On Wed, Nov 23, 2016 at 6:47 AM, Mueller, Milton L >>>> <milton@gatech.edu <mailto:milton@gatech.edu> <mailto:milton@gatech.edu <mailto:milton@gatech.edu>>> wrote: >>>> >>>> CW and I have agreed on the following draft: >>>> >>>> >>>> >>>> >>>> >>>> *Request for stakeholder input on jurisdiction issues* >>>> >>>> >>>> >>>> The Jurisdiction subgroup of the CCWG Accountability is >>>> asking for the community to provide factual input on the >>>> following questions: >>>> >>>> >>>> >>>> 1. Has your business, your privacy or your ability to >>>> use or purchase DNS-related services, been affected by >>>> ICANN's jurisdiction in any way? >>>> >>>> If the answer is Yes, please describe specific cases or >>>> incidents, including the date, the parties involved, and >>>> links to any relevant documents. >>>> >>>> >>>> >>>> 2. Has ICANN's jurisdiction affected any dispute >>>> resolution process or litigation related to domain names you >>>> have been involved in? >>>> >>>> If the answer is Yes, please describe specific cases or >>>> incidents, including the date, the parties involved, and >>>> links to any relevant documents. >>>> >>>> >>>> >>>> >>>> >>>> >>>> >>>> Dr. Milton L. Mueller >>>> >>>> Professor, School of Public Policy >>>> >>>> Georgia Institute of Technology >>>> >>>> >>>> >>>> >>>> >>>> >>>> _______________________________________________ >>>> Ws2-jurisdiction mailing list >>>> Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> <mailto: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> >>>> >>>> >>>> >>>> >>>> >>>> >>>> _______________________________________________ >>>> >>>> Ws2-jurisdiction mailing list >>>> >>>> Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> <mailto: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> >>>> >>>> >>>> >>> >>> >>> _______________________________________________ >>> 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> >> >> >> --- >> This email has been checked for viruses by Avast antivirus software. >> https://www.avast.com/antivirus <https://www.avast.com/antivirus> >> >> _______________________________________________ >> 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> > _______________________________________________ > 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> >
_______________________________________________ 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>
_______________________________________________ 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>
_______________________________________________ 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>
_______________________________________________ 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>
On Saturday 26 November 2016 08:23 PM, avri doria wrote:
Hi,
I am among those who would like to see a question included along the lines Parminder suggests. It should, however, be made by specific reference to existing laws that could be used to interfere with ICANN's ability to provide service to customers in other countries.
I think that Avri's proposal would be a good way to go about it, as long as we do not the circumscribe the inquiry too much. I would prefer a general question, plus a specific component, like What do you think are the problems, if any, with continued jurisdiction of the US state over ICANN, as a US non-profit? Please justify your response with appropriate examples, analysis, etc. Especially, please indicate if there are existing and past instances that highlight such problems. Also, in terms of future likelihood, please mention specific institutions/ laws etc of the US state that could be used to interfere with ICANN's ability to provide global governance services to all people of the world, including in non US countries. (Pl note that I have replaced the last part on services to customers in other countries to global gov services to all people.)
While I strongly support keeping the incorporation in CA in the US because the yet to tested accountability process depends on that,
I am happy to support a separate exercise seeking expert opinion on whether accountability process does or does not pertain to private law which can choose its own jurisdiction of adjudication (as most private contracts can), irrespective of whether ICANN is subject to US public laws or not, as having immunity from them, whether on basis of an international law incorporation of US state granted immunity under the mentioned immunity laws of the US. In this manner, to ascertain whether ICANN's new accountability mechanism can or cannot still be adjudicated upon by Californian law/ courts, on the basis of making the necessary provision in ICANN's bylaws.
I also support an effort to look for immunity from laws that affect ICANN ability to serve clients internationally - be they governments, companies or individuals. This immunity should be restricted to ICANN performance of its mission in relation to international entities and _not_ relate to contract law, labor law or local ordinances on garbage pickup.
Of course, that is exactly what is sought. And that is possible in my view to do with immunity under the US immunity provisions.
I do not think that this immunity can be gained in the WS2 timeframe, but I do believe that WS2 could initiate yet another CCWG effort to work on that, if the consensus of the group were to do so. The purpose of the WS2 is to make recommendations and for ICANN to begin action on that basis. That can be done in a few months, if agreed to.. It is not about necessarily completing the process within WS2 time frame. If WS2 does not give this rec, and passes it on to WS3, the same problem will arise; if we would not have begun working on it, immunity cannot be gained within any WS# time period as well, which then becomes an infinite process .....
Let us be very clear; if we are working on immunity from US under relevant current provisions of US law, we can only recommend, as the wish of the world community. It if of course for the US state to act on it or not. But I would find it extremely strange for us not to arrive at a rec which in our view if what preserves the global public interest best, and is quite possible/ practical to do, just because we begin second guessing whether US state will actually do it, and if so, in what time frame. That I do not think if the job of this group or of CCWG as a whole.
But first we need more of the background information, the so-called facts. We have to remember that with NTIA oversight, the application of some laws may have been different than it might be going forward. We need to understand whether that is the case or not, and whether there are laws that could now be applied to ICANN's activities that were not applied before.
Yes I agree. This is a kind of investigation that is needed. Meanwhile, let me add, and I think this is what Avri is already alluding to, as now being not under a US gov contract/ oversight, ICANN in fact , in one way, may be more exposed to the full power of all laws and institutions of the US state than before. It is now just another private organisation. parminder
avri
On 26-Nov-16 05:08, parminder wrote:
On Saturday 26 November 2016 01:55 PM, Mueller, Milton L wrote:
Sorry, Parminder, I see this as a request for opinions, not facts. The whole point of this exercise is to gain specific factual cases that show actual issues, not to provide people with an excuse to complain about what the “think are the problems.” I would reject adding such a question to the list
Milton, you probably mean, you are against adding such a question :). I dont see you have any authority to reject anything any more than I have to reject your original formulation.
Was not the community accountability mechanism instituted just on the basis of "what people think are the problems"? I saw no efforts to gather facts with surveys like
"1. Are you aware of any instance in which anyone's business, privacy, or ability to use or purchase DNS-related services, has been affected by absence of a community accountability mechanism ?
If any such known 'facts' exist I am unaware of them and will like to know.
In case of the question of ICANN's jurisdiction of incorporation analytical facts are rather more evident, as raised in the civil society statement.
The process we employ can lead towards certain kind of outcomes rather than others. And I see this particular process being aimed at foreclosing the jurisdiction of incorporation question. This is fact the "application of public laws question" because immunity from such application can be obtained even without changing ICANN's place of jurisdiction.
Meaning ICANN can stay incorporated as US non profit in California, and it exempted from application form various public laws as per the US immunity act that I cited. I also said that, as far as I can understand, it is possible to keep the private disputes arising from ICANN's organisational system, including those about enforcement of community powers, to be subject to US/ Californian law, strictly only for such dispute resolution as per ICANN bylaws. We need to hear from this group why this is not possible or not preferred...
parminder
*From:*ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] *On Behalf Of *parminder *Sent:* Wednesday, November 23, 2016 11:54 PM *To:* ws2-jurisdiction@icann.org *Subject:* Re: [Ws2-jurisdiction] first draft of fact solicitation questions
I will like to add a general question to the below:
What do you think are the problems, if any, with continued jurisdiction of the US state over ICANN, as a US non-profit? Please justify your response with appropriate examples, analysis, etc. Especially, if there are existing and past instances that highlight such problems please indicate them.
parminder
On Wednesday 23 November 2016 09:50 PM, Mike Rodenbaugh wrote:
These seem well-stated, except perhaps they should not be looking only for personal experience, but broaden the request to seek any experience the responder is aware of? So I suggest something like:
1. Are you aware of any instance in which anyone's business, privacy, or ability to use or purchase DNS-related services, has been affected by ICANN's jurisdiction in any way?
If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents.
2. Are you aware of any instance in which ICANN's jurisdiction affected any dispute resolution process or litigation related to domain names?
If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents.
Mike Rodenbaugh
RODENBAUGH LAW
tel/fax: +1.415.738.8087
On Wed, Nov 23, 2016 at 6:47 AM, Mueller, Milton L <milton@gatech.edu <mailto:milton@gatech.edu>> wrote:
CW and I have agreed on the following draft:
*Request for stakeholder input on jurisdiction issues*
The Jurisdiction subgroup of the CCWG Accountability is asking for the community to provide factual input on the following questions:
1. Has your business, your privacy or your ability to use or purchase DNS-related services, been affected by ICANN's jurisdiction in any way?
If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents.
2. Has ICANN's jurisdiction affected any dispute resolution process or litigation related to domain names you have been involved in?
If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents.
Dr. Milton L. Mueller
Professor, School of Public Policy
Georgia Institute of Technology
_______________________________________________ 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>
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
--- This email has been checked for viruses by Avast antivirus software. https://www.avast.com/antivirus
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
Dear subgroup colleagues, I would like to support Parminder's rewritten question below. I believe it perfectly complies with the general requirement of a evidence based approach and it complements the two original questions since it introduces the element of future likelihood. Our group should not only make recommendations based on problems/issues identified in the past, but also on perceived risks and threats that the current jurisdictional arrangement entails. I also support Mike Rodenbaugh's suggestion to broaden the scope of the questions. I think we should welcome the input of any stakeholder that may have facts and genuine (well-founded) issues to present. Finally, in order to eliminate the possibility of confusion, I would support dividing the document in two sessions: 1. Fact solicitation/ 2. Perceived risks Regards, Secretário Pedro Ivo Ferraz da Silva Divisão da Sociedade da Informação (DI) Ministério das Relações Exteriores - Brasil T: + 55 61 2030-6609 Secretary Pedro Ivo Ferraz da Silva Division of Information Society (DI) Ministry of External Relations - Brazil T: + 55 61 2030-6609 De: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] Em nome de parminder Enviada em: domingo, 27 de novembro de 2016 04:34 Para: ws2-jurisdiction@icann.org Assunto: Re: [Ws2-jurisdiction] first draft of fact solicitation questions On Saturday 26 November 2016 08:23 PM, avri doria wrote: Hi, I am among those who would like to see a question included along the lines Parminder suggests. It should, however, be made by specific reference to existing laws that could be used to interfere with ICANN's ability to provide service to customers in other countries. I think that Avri's proposal would be a good way to go about it, as long as we do not the circumscribe the inquiry too much. I would prefer a general question, plus a specific component, like What do you think are the problems, if any, with continued jurisdiction of the US state over ICANN, as a US non-profit? Please justify your response with appropriate examples, analysis, etc. Especially, please indicate if there are existing and past instances that highlight such problems. Also, in terms of future likelihood, please mention specific institutions/ laws etc of the US state that could be used to interfere with ICANN's ability to provide global governance services to all people of the world, including in non US countries. (Pl note that I have replaced the last part on services to customers in other countries to global gov services to all people.) While I strongly support keeping the incorporation in CA in the US because the yet to tested accountability process depends on that, I am happy to support a separate exercise seeking expert opinion on whether accountability process does or does not pertain to private law which can choose its own jurisdiction of adjudication (as most private contracts can), irrespective of whether ICANN is subject to US public laws or not, as having immunity from them, whether on basis of an international law incorporation of US state granted immunity under the mentioned immunity laws of the US. In this manner, to ascertain whether ICANN's new accountability mechanism can or cannot still be adjudicated upon by Californian law/ courts, on the basis of making the necessary provision in ICANN's bylaws. I also support an effort to look for immunity from laws that affect ICANN ability to serve clients internationally - be they governments, companies or individuals. This immunity should be restricted to ICANN performance of its mission in relation to international entities and _not_ relate to contract law, labor law or local ordinances on garbage pickup. Of course, that is exactly what is sought. And that is possible in my view to do with immunity under the US immunity provisions. I do not think that this immunity can be gained in the WS2 timeframe, but I do believe that WS2 could initiate yet another CCWG effort to work on that, if the consensus of the group were to do so. The purpose of the WS2 is to make recommendations and for ICANN to begin action on that basis. That can be done in a few months, if agreed to.. It is not about necessarily completing the process within WS2 time frame. If WS2 does not give this rec, and passes it on to WS3, the same problem will arise; if we would not have begun working on it, immunity cannot be gained within any WS# time period as well, which then becomes an infinite process ..... Let us be very clear; if we are working on immunity from US under relevant current provisions of US law, we can only recommend, as the wish of the world community. It if of course for the US state to act on it or not. But I would find it extremely strange for us not to arrive at a rec which in our view if what preserves the global public interest best, and is quite possible/ practical to do, just because we begin second guessing whether US state will actually do it, and if so, in what time frame. That I do not think if the job of this group or of CCWG as a whole. But first we need more of the background information, the so-called facts. We have to remember that with NTIA oversight, the application of some laws may have been different than it might be going forward. We need to understand whether that is the case or not, and whether there are laws that could now be applied to ICANN's activities that were not applied before. Yes I agree. This is a kind of investigation that is needed. Meanwhile, let me add, and I think this is what Avri is already alluding to, as now being not under a US gov contract/ oversight, ICANN in fact , in one way, may be more exposed to the full power of all laws and institutions of the US state than before. It is now just another private organisation. parminder avri On 26-Nov-16 05:08, parminder wrote: On Saturday 26 November 2016 01:55 PM, Mueller, Milton L wrote: Sorry, Parminder, I see this as a request for opinions, not facts. The whole point of this exercise is to gain specific factual cases that show actual issues, not to provide people with an excuse to complain about what the "think are the problems." I would reject adding such a question to the list Milton, you probably mean, you are against adding such a question :). I dont see you have any authority to reject anything any more than I have to reject your original formulation. Was not the community accountability mechanism instituted just on the basis of "what people think are the problems"? I saw no efforts to gather facts with surveys like "1. Are you aware of any instance in which anyone's business, privacy, or ability to use or purchase DNS-related services, has been affected by absence of a community accountability mechanism ? If any such known 'facts' exist I am unaware of them and will like to know. In case of the question of ICANN's jurisdiction of incorporation analytical facts are rather more evident, as raised in the civil society statement. The process we employ can lead towards certain kind of outcomes rather than others. And I see this particular process being aimed at foreclosing the jurisdiction of incorporation question. This is fact the "application of public laws question" because immunity from such application can be obtained even without changing ICANN's place of jurisdiction. Meaning ICANN can stay incorporated as US non profit in California, and it exempted from application form various public laws as per the US immunity act that I cited. I also said that, as far as I can understand, it is possible to keep the private disputes arising from ICANN's organisational system, including those about enforcement of community powers, to be subject to US/ Californian law, strictly only for such dispute resolution as per ICANN bylaws. We need to hear from this group why this is not possible or not preferred... parminder *From:*ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] *On Behalf Of *parminder *Sent:* Wednesday, November 23, 2016 11:54 PM *To:* ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org> *Subject:* Re: [Ws2-jurisdiction] first draft of fact solicitation questions I will like to add a general question to the below: What do you think are the problems, if any, with continued jurisdiction of the US state over ICANN, as a US non-profit? Please justify your response with appropriate examples, analysis, etc. Especially, if there are existing and past instances that highlight such problems please indicate them. parminder On Wednesday 23 November 2016 09:50 PM, Mike Rodenbaugh wrote: These seem well-stated, except perhaps they should not be looking only for personal experience, but broaden the request to seek any experience the responder is aware of? So I suggest something like: 1. Are you aware of any instance in which anyone's business, privacy, or ability to use or purchase DNS-related services, has been affected by ICANN's jurisdiction in any way? If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents. 2. Are you aware of any instance in which ICANN's jurisdiction affected any dispute resolution process or litigation related to domain names? If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents. Mike Rodenbaugh RODENBAUGH LAW tel/fax: +1.415.738.8087 http://rodenbaugh.com On Wed, Nov 23, 2016 at 6:47 AM, Mueller, Milton L <milton@gatech.edu<mailto:milton@gatech.edu> <mailto:milton@gatech.edu><mailto:milton@gatech.edu>> wrote: CW and I have agreed on the following draft: *Request for stakeholder input on jurisdiction issues* The Jurisdiction subgroup of the CCWG Accountability is asking for the community to provide factual input on the following questions: 1. Has your business, your privacy or your ability to use or purchase DNS-related services, been affected by ICANN's jurisdiction in any way? If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents. 2. Has ICANN's jurisdiction affected any dispute resolution process or litigation related to domain names you have been involved in? If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents. Dr. Milton L. Mueller Professor, School of Public Policy Georgia Institute of Technology _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> <mailto: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> <mailto: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 --- This email has been checked for viruses by Avast antivirus software. https://www.avast.com/antivirus _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
I would oppose this as it relates to future risks unless the responders also identified other potential jurisdictions where those future risks would not be realized and assessed the future risks of those potential jurisdictions of transfer. Speculation about future problems is fruitless unless it is comprehensive. Retrospective inquiry as to past problems is fact based and useful. Lets do the useful 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 Pedro Ivo Ferraz da Silva Sent: Monday, November 28, 2016 4:07 PM To: ws2-jurisdiction@icann.org Subject: [Ws2-jurisdiction] RES: first draft of fact solicitation questions Dear subgroup colleagues, I would like to support Parminder's rewritten question below. I believe it perfectly complies with the general requirement of a evidence based approach and it complements the two original questions since it introduces the element of future likelihood. Our group should not only make recommendations based on problems/issues identified in the past, but also on perceived risks and threats that the current jurisdictional arrangement entails. I also support Mike Rodenbaugh's suggestion to broaden the scope of the questions. I think we should welcome the input of any stakeholder that may have facts and genuine (well-founded) issues to present. Finally, in order to eliminate the possibility of confusion, I would support dividing the document in two sessions: 1. Fact solicitation/ 2. Perceived risks Regards, Secretário Pedro Ivo Ferraz da Silva Divisão da Sociedade da Informação (DI) Ministério das Relações Exteriores - Brasil T: + 55 61 2030-6609 Secretary Pedro Ivo Ferraz da Silva Division of Information Society (DI) Ministry of External Relations - Brazil T: + 55 61 2030-6609 De: ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] Em nome de parminder Enviada em: domingo, 27 de novembro de 2016 04:34 Para: ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> Assunto: Re: [Ws2-jurisdiction] first draft of fact solicitation questions On Saturday 26 November 2016 08:23 PM, avri doria wrote: Hi, I am among those who would like to see a question included along the lines Parminder suggests. It should, however, be made by specific reference to existing laws that could be used to interfere with ICANN's ability to provide service to customers in other countries. I think that Avri's proposal would be a good way to go about it, as long as we do not the circumscribe the inquiry too much. I would prefer a general question, plus a specific component, like What do you think are the problems, if any, with continued jurisdiction of the US state over ICANN, as a US non-profit? Please justify your response with appropriate examples, analysis, etc. Especially, please indicate if there are existing and past instances that highlight such problems. Also, in terms of future likelihood, please mention specific institutions/ laws etc of the US state that could be used to interfere with ICANN's ability to provide global governance services to all people of the world, including in non US countries. (Pl note that I have replaced the last part on services to customers in other countries to global gov services to all people.) While I strongly support keeping the incorporation in CA in the US because the yet to tested accountability process depends on that, I am happy to support a separate exercise seeking expert opinion on whether accountability process does or does not pertain to private law which can choose its own jurisdiction of adjudication (as most private contracts can), irrespective of whether ICANN is subject to US public laws or not, as having immunity from them, whether on basis of an international law incorporation of US state granted immunity under the mentioned immunity laws of the US. In this manner, to ascertain whether ICANN's new accountability mechanism can or cannot still be adjudicated upon by Californian law/ courts, on the basis of making the necessary provision in ICANN's bylaws. I also support an effort to look for immunity from laws that affect ICANN ability to serve clients internationally - be they governments, companies or individuals. This immunity should be restricted to ICANN performance of its mission in relation to international entities and _not_ relate to contract law, labor law or local ordinances on garbage pickup. Of course, that is exactly what is sought. And that is possible in my view to do with immunity under the US immunity provisions. I do not think that this immunity can be gained in the WS2 timeframe, but I do believe that WS2 could initiate yet another CCWG effort to work on that, if the consensus of the group were to do so. The purpose of the WS2 is to make recommendations and for ICANN to begin action on that basis. That can be done in a few months, if agreed to.. It is not about necessarily completing the process within WS2 time frame. If WS2 does not give this rec, and passes it on to WS3, the same problem will arise; if we would not have begun working on it, immunity cannot be gained within any WS# time period as well, which then becomes an infinite process ..... Let us be very clear; if we are working on immunity from US under relevant current provisions of US law, we can only recommend, as the wish of the world community. It if of course for the US state to act on it or not. But I would find it extremely strange for us not to arrive at a rec which in our view if what preserves the global public interest best, and is quite possible/ practical to do, just because we begin second guessing whether US state will actually do it, and if so, in what time frame. That I do not think if the job of this group or of CCWG as a whole. But first we need more of the background information, the so-called facts. We have to remember that with NTIA oversight, the application of some laws may have been different than it might be going forward. We need to understand whether that is the case or not, and whether there are laws that could now be applied to ICANN's activities that were not applied before. Yes I agree. This is a kind of investigation that is needed. Meanwhile, let me add, and I think this is what Avri is already alluding to, as now being not under a US gov contract/ oversight, ICANN in fact , in one way, may be more exposed to the full power of all laws and institutions of the US state than before. It is now just another private organisation. parminder avri On 26-Nov-16 05:08, parminder wrote: On Saturday 26 November 2016 01:55 PM, Mueller, Milton L wrote: Sorry, Parminder, I see this as a request for opinions, not facts. The whole point of this exercise is to gain specific factual cases that show actual issues, not to provide people with an excuse to complain about what the think are the problems. I would reject adding such a question to the list Milton, you probably mean, you are against adding such a question :). I dont see you have any authority to reject anything any more than I have to reject your original formulation. Was not the community accountability mechanism instituted just on the basis of "what people think are the problems"? I saw no efforts to gather facts with surveys like "1. Are you aware of any instance in which anyone's business, privacy, or ability to use or purchase DNS-related services, has been affected by absence of a community accountability mechanism ? If any such known 'facts' exist I am unaware of them and will like to know. In case of the question of ICANN's jurisdiction of incorporation analytical facts are rather more evident, as raised in the civil society statement. The process we employ can lead towards certain kind of outcomes rather than others. And I see this particular process being aimed at foreclosing the jurisdiction of incorporation question. This is fact the "application of public laws question" because immunity from such application can be obtained even without changing ICANN's place of jurisdiction. Meaning ICANN can stay incorporated as US non profit in California, and it exempted from application form various public laws as per the US immunity act that I cited. I also said that, as far as I can understand, it is possible to keep the private disputes arising from ICANN's organisational system, including those about enforcement of community powers, to be subject to US/ Californian law, strictly only for such dispute resolution as per ICANN bylaws. We need to hear from this group why this is not possible or not preferred... parminder *From:*ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] *On Behalf Of *parminder *Sent:* Wednesday, November 23, 2016 11:54 PM *To:* ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> *Subject:* Re: [Ws2-jurisdiction] first draft of fact solicitation questions I will like to add a general question to the below: What do you think are the problems, if any, with continued jurisdiction of the US state over ICANN, as a US non-profit? Please justify your response with appropriate examples, analysis, etc. Especially, if there are existing and past instances that highlight such problems please indicate them. parminder On Wednesday 23 November 2016 09:50 PM, Mike Rodenbaugh wrote: These seem well-stated, except perhaps they should not be looking only for personal experience, but broaden the request to seek any experience the responder is aware of? So I suggest something like: 1. Are you aware of any instance in which anyone's business, privacy, or ability to use or purchase DNS-related services, has been affected by ICANN's jurisdiction in any way? If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents. 2. Are you aware of any instance in which ICANN's jurisdiction affected any dispute resolution process or litigation related to domain names? If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents. Mike Rodenbaugh RODENBAUGH LAW tel/fax: +1.415.738.8087 http://rodenbaugh.com On Wed, Nov 23, 2016 at 6:47 AM, Mueller, Milton L <milton@gatech.edu <mailto:milton@gatech.edu> <mailto:milton@gatech.edu> <mailto:milton@gatech.edu>> wrote: CW and I have agreed on the following draft: *Request for stakeholder input on jurisdiction issues* The Jurisdiction subgroup of the CCWG Accountability is asking for the community to provide factual input on the following questions: 1. Has your business, your privacy or your ability to use or purchase DNS-related services, been affected by ICANN's jurisdiction in any way? If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents. 2. Has ICANN's jurisdiction affected any dispute resolution process or litigation related to domain names you have been involved in? If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents. Dr. Milton L. Mueller Professor, School of Public Policy Georgia Institute of Technology _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> <mailto: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> <mailto: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 --- This email has been checked for viruses by Avast antivirus software. https://www.avast.com/antivirus _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
On Tuesday 29 November 2016 03:11 AM, Paul Rosenzweig wrote:
I would oppose this as it relates to future risks unless the responders also identified other potential jurisdictions where those future risks would not be realized and assessed the future risks of those potential jurisdictions of transfer.
I am happy to add that, but perhaps Greg, at this stage, does not want to look at remedies - and therefore problems with potential remedies. But I have no problem..
Speculation about future problems is fruitless unless it is comprehensive. Retrospective inquiry as to past problems is fact based and useful. Let’s do the useful …
Facts do not exist in just one way, but many, with possibly similar implications. For instance, Lets say someone wants to measure the level of gender discrimination(or abuse) in a society by the number of cases regarding gender discrimination (or abuse) filed in that country in a given period, and use those 'facts' to list countries by extent of gender discrimination (or abuse)... We all know that this 'facts' based exercise can be extremely fallacious - most societies with high gender discrimination (or abuse) simply do not have good laws regarding it, even if laws exist the rate of getting positive verdicts may be too low because of entrenched ideologies in the establishment, in any case the social opprobrium associated with a woman filing a gender discrimination (or abuse) case may be too high ...... and so on.... Political discussions pertaining to society's larger dynamics, like the one this group is tasked with, are based on different kinds of "facts", individual, social, inductive-statistical, deductive-analytical, easily measured, not easily measured, and so on ... All facts are important, and choosing one kind over others can lead to the kind of fallacy pointed to in the above direction. parminder
Paul
Paul Rosenzweig
paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com>
O: +1 (202) 547-0660
M: +1 (202) 329-9650
VOIP: +1 (202) 738-1739
www.redbranchconsulting.com <http://www.redbranchconsulting.com/>
My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684
*From:*ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] *On Behalf Of *Pedro Ivo Ferraz da Silva *Sent:* Monday, November 28, 2016 4:07 PM *To:* ws2-jurisdiction@icann.org *Subject:* [Ws2-jurisdiction] RES: first draft of fact solicitation questions
Dear subgroup colleagues,
I would like to support Parminder's rewritten question below. I believe it perfectly complies with the general requirement of a evidence based approach and it complements the two original questions since it introduces the element of future likelihood.
Our group should not only make recommendations based on problems/issues identified in the past, but also on perceived risks and threats that the current jurisdictional arrangement entails.
I also support Mike Rodenbaugh's suggestion to broaden the scope of the questions. I think we should welcome the input of any stakeholder that may have facts and genuine (well-founded) issues to present.
Finally, in order to eliminate the possibility of confusion, I would support dividing the document in two sessions: 1. Fact solicitation/ 2. Perceived risks
Regards,
Secretário Pedro Ivo Ferraz da Silva
Divisão da Sociedade da Informação (DI)
Ministério das Relações Exteriores - Brasil
T: + 55 61 2030-6609
Secretary Pedro Ivo Ferraz da Silva
Division of Information Society (DI)
Ministry of External Relations - Brazil
T: + 55 61 2030-6609
*De:*ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] *Em nome de *parminder *Enviada em:* domingo, 27 de novembro de 2016 04:34 *Para:* ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> *Assunto:* Re: [Ws2-jurisdiction] first draft of fact solicitation questions
On Saturday 26 November 2016 08:23 PM, avri doria wrote:
Hi,
I am among those who would like to see a question included along the
lines Parminder suggests. It should, however, be made by specific
reference to existing laws that could be used to interfere with ICANN's
ability to provide service to customers in other countries.
I think that Avri's proposal would be a good way to go about it, as long as we do not the circumscribe the inquiry too much. I would prefer a general question, plus a specific component, like
What do you think are the problems, if any, with continued jurisdiction of the US state over ICANN, as a US non-profit? Please justify your response with appropriate examples, analysis, etc. Especially, please indicate if there are existing and past instances that highlight such problems. Also, in terms of future likelihood, please mention specific institutions/ laws etc of the US state that could be used to interfere with ICANN's ability to provide global governance services to all people of the world, including in non US countries.
(Pl note that I have replaced the last part on services to customers in other countries to global gov services to all people.)
While I strongly support keeping the incorporation in CA in the US because the yet to tested accountability process depends on that,
I am happy to support a separate exercise seeking expert opinion on whether accountability process does or does not pertain to private law which can choose its own jurisdiction of adjudication (as most private contracts can), irrespective of whether ICANN is subject to US public laws or not, as having immunity from them, whether on basis of an international law incorporation of US state granted immunity under the mentioned immunity laws of the US. In this manner, to ascertain whether ICANN's new accountability mechanism can or cannot still be adjudicated upon by Californian law/ courts, on the basis of making the necessary provision in ICANN's bylaws.
I also support an effort to look for immunity from laws that affect ICANN ability to serve clients internationally - be they governments, companies or individuals. This immunity should be restricted to ICANN performance of its mission in relation to international entities and _not_ relate to contract law, labor law or local ordinances on garbage pickup.
Of course, that is exactly what is sought. And that is possible in my view to do with immunity under the US immunity provisions.
I do not think that this immunity can be gained in the WS2 timeframe, but I do believe that WS2 could initiate yet another CCWG effort to work on that, if the consensus of the group were to do so.
The purpose of the WS2 is to make recommendations and for ICANN to begin action on that basis. That can be done in a few months, if agreed to.. It is not about necessarily completing the process within WS2 time frame. If WS2 does not give this rec, and passes it on to WS3, the same problem will arise; if we would not have begun working on it, immunity cannot be gained within any WS# time period as well, which then becomes an infinite process .....
Let us be very clear; if we are working on immunity from US under relevant current provisions of US law, we can only recommend, as the wish of the world community. It if of course for the US state to act on it or not. But I would find it extremely strange for us not to arrive at a rec which in our view if what preserves the global public interest best, and is quite possible/ practical to do, just because we begin second guessing whether US state will actually do it, and if so, in what time frame. That I do not think if the job of this group or of CCWG as a whole.
But first we need more of the background information, the so-called facts. We have to remember that with NTIA oversight, the application of some laws may have been different than it might be going forward. We need to understand whether that is the case or not, and whether there are laws that could now be applied to ICANN's activities that were not applied before.
Yes I agree. This is a kind of investigation that is needed. Meanwhile, let me add, and I think this is what Avri is already alluding to, as now being not under a US gov contract/ oversight, ICANN in fact , in one way, may be more exposed to the full power of all laws and institutions of the US state than before. It is now just another private organisation.
parminder
avri
On 26-Nov-16 05:08, parminder wrote:
On Saturday 26 November 2016 01:55 PM, Mueller, Milton L wrote:
Sorry, Parminder, I see this as a request for opinions, not facts.
The whole point of this exercise is to gain specific factual cases
that show actual issues, not to provide people with an excuse to
complain about what the “think are the problems.” I would reject
adding such a question to the list
Milton, you probably mean, you are against adding such a question :).
I dont see you have any authority to reject anything any more than I
have to reject your original formulation.
Was not the community accountability mechanism instituted just on the
basis of "what people think are the problems"? I saw no efforts to
gather facts with surveys like
"1. Are you aware of any instance in which anyone's business,
privacy, or ability to use or purchase DNS-related services, has been
affected by absence of a community accountability mechanism ?
If any such known 'facts' exist I am unaware of them and will like to
know.
In case of the question of ICANN's jurisdiction of incorporation
analytical facts are rather more evident, as raised in the civil
society statement.
The process we employ can lead towards certain kind of outcomes rather
than others. And I see this particular process being aimed at
foreclosing the jurisdiction of incorporation question. This is fact
the "application of public laws question" because immunity from such
application can be obtained even without changing ICANN's place of
jurisdiction.
Meaning ICANN can stay incorporated as US non profit in California,
and it exempted from application form various public laws as per the
US immunity act that I cited. I also said that, as far as I can
understand, it is possible to keep the private disputes arising from
ICANN's organisational system, including those about enforcement of
community powers, to be subject to US/ Californian law, strictly only
for such dispute resolution as per ICANN bylaws. We need to hear from
this group why this is not possible or not preferred...
parminder
*From:*ws2-jurisdiction-bounces@icann.org
[mailto:ws2-jurisdiction-bounces@icann.org] *On Behalf Of *parminder
*Sent:* Wednesday, November 23, 2016 11:54 PM
*To:* ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org>
*Subject:* Re: [Ws2-jurisdiction] first draft of fact solicitation
questions
I will like to add a general question to the below:
What do you think are the problems, if any, with continued
jurisdiction of the US state over ICANN, as a US non-profit? Please
justify your response with appropriate examples, analysis, etc.
Especially, if there are existing and past instances that highlight
such problems please indicate them.
parminder
On Wednesday 23 November 2016 09:50 PM, Mike Rodenbaugh wrote:
These seem well-stated, except perhaps they should not be looking
only for personal experience, but broaden the request to seek any
experience the responder is aware of? So I suggest something like:
1. Are you aware of any instance in which anyone's
business, privacy, or ability to use or purchase DNS-related
services, has been affected by ICANN's jurisdiction in any way?
If the answer is Yes, please describe specific cases or
incidents, including the date, the parties involved, and links to
any relevant documents.
2. Are you aware of any instance in which ICANN's
jurisdiction affected any dispute resolution process or
litigation related to domain names?
If the answer is Yes, please describe specific cases or
incidents, including the date, the parties involved, and links to
any relevant documents.
Mike Rodenbaugh
RODENBAUGH LAW
tel/fax: +1.415.738.8087
On Wed, Nov 23, 2016 at 6:47 AM, Mueller, Milton L
<milton@gatech.edu <mailto:milton@gatech.edu> <mailto:milton@gatech.edu> <mailto:milton@gatech.edu>> wrote:
CW and I have agreed on the following draft:
*Request for stakeholder input on jurisdiction issues*
The Jurisdiction subgroup of the CCWG Accountability is
asking for the community to provide factual input on the
following questions:
1. Has your business, your privacy or your ability to
use or purchase DNS-related services, been affected by
ICANN's jurisdiction in any way?
If the answer is Yes, please describe specific cases or
incidents, including the date, the parties involved, and
links to any relevant documents.
2. Has ICANN's jurisdiction affected any dispute
resolution process or litigation related to domain names you
have been involved in?
If the answer is Yes, please describe specific cases or
incidents, including the date, the parties involved, and
links to any relevant documents.
Dr. Milton L. Mueller
Professor, School of Public Policy
Georgia Institute of Technology
_______________________________________________
Ws2-jurisdiction mailing list
Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> <mailto: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> <mailto: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
--- This email has been checked for viruses by Avast antivirus software. https://www.avast.com/antivirus
_______________________________________________ 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 https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
Please see inline responses below. On Mon, Nov 28, 2016 at 10:17 PM, parminder <parminder@itforchange.net> wrote:
On Tuesday 29 November 2016 03:11 AM, Paul Rosenzweig wrote:
I would oppose this as it relates to future risks unless the responders also identified other potential jurisdictions where those future risks would not be realized and assessed the future risks of those potential jurisdictions of transfer.
I am happy to add that, but perhaps Greg, at this stage, does not want to look at remedies - and therefore problems with potential remedies. But I have no problem..
This has nothing to do with what I personally want to look at. As has already been stated on this list and on our calls, the agreed-upon working method of this group is to first identify possible issues and, in the next phase, to look at a range of possible remedies and the pros and cons of those remedies. And that is the work to be done in this group by this group.
Speculation about future problems is fruitless unless it is comprehensive. Retrospective inquiry as to past problems is fact based and useful. Let’s do the useful …
Facts do not exist in just one way, but many, with possibly similar implications. For instance, Lets say someone wants to measure the level of gender discrimination(or abuse) in a society by the number of cases regarding gender discrimination (or abuse) filed in that country in a given period, and use those 'facts' to list countries by extent of gender discrimination (or abuse)... We all know that this 'facts' based exercise can be extremely fallacious - most societies with high gender discrimination (or abuse) simply do not have good laws regarding it, even if laws exist the rate of getting positive verdicts may be too low because of entrenched ideologies in the establishment, in any case the social opprobrium associated with a woman filing a gender discrimination (or abuse) case may be too high ...... and so on....
Political discussions pertaining to society's larger dynamics, like the one this group is tasked with, are based on different kinds of "facts", individual, social, inductive-statistical, deductive-analytical, easily measured, not easily measured, and so on ... All facts are important, and choosing one kind over others can lead to the kind of fallacy pointed to in the above direction.
I really do not think our group is tasked with " Political discussions pertaining to society's larger dynamics, " Our remit is defined in Annex 12 of the Final Report of Workstream 1, and that is what we need to stick to. I understand that if one were to draw the largest possible circle around "ICANN's jurisdiction," one might encompass all sorts of broad-ranging topics and approaches. But this is not that sort of omnibus discussion group intended to draw the largest possible circle around this topic. There are certainly other places (ISOC lists, for example) to explore the further reaches of this topic, but we are going to remain focused on the work that this subgroup is tasked to do, rather than straying into " Political discussions pertaining to society's larger dynamics . " Greg
parminder
Paul
Paul Rosenzweig
paul.rosenzweig@redbranchconsulting.com
O: +1 (202) 547-0660
M: +1 (202) 329-9650
VOIP: +1 (202) 738-1739
www.redbranchconsulting.com
My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search= 0x9A830097CA066684
*From:* ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction- bounces@icann.org <ws2-jurisdiction-bounces@icann.org>] *On Behalf Of *Pedro Ivo Ferraz da Silva *Sent:* Monday, November 28, 2016 4:07 PM *To:* ws2-jurisdiction@icann.org *Subject:* [Ws2-jurisdiction] RES: first draft of fact solicitation questions
Dear subgroup colleagues,
I would like to support Parminder's rewritten question below. I believe it perfectly complies with the general requirement of a evidence based approach and it complements the two original questions since it introduces the element of future likelihood.
Our group should not only make recommendations based on problems/issues identified in the past, but also on perceived risks and threats that the current jurisdictional arrangement entails.
I also support Mike Rodenbaugh's suggestion to broaden the scope of the questions. I think we should welcome the input of any stakeholder that may have facts and genuine (well-founded) issues to present.
Finally, in order to eliminate the possibility of confusion, I would support dividing the document in two sessions: 1. Fact solicitation/ 2. Perceived risks
Regards,
Secretário Pedro Ivo Ferraz da Silva
Divisão da Sociedade da Informação (DI)
Ministério das Relações Exteriores - Brasil
T: + 55 61 2030-6609
Secretary Pedro Ivo Ferraz da Silva
Division of Information Society (DI)
Ministry of External Relations - Brazil
T: + 55 61 2030-6609
*De:* ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction- bounces@icann.org <ws2-jurisdiction-bounces@icann.org>] *Em nome de * parminder *Enviada em:* domingo, 27 de novembro de 2016 04:34 *Para:* ws2-jurisdiction@icann.org *Assunto:* Re: [Ws2-jurisdiction] first draft of fact solicitation questions
On Saturday 26 November 2016 08:23 PM, avri doria wrote:
Hi,
I am among those who would like to see a question included along the
lines Parminder suggests. It should, however, be made by specific
reference to existing laws that could be used to interfere with ICANN's
ability to provide service to customers in other countries.
I think that Avri's proposal would be a good way to go about it, as long as we do not the circumscribe the inquiry too much. I would prefer a general question, plus a specific component, like
What do you think are the problems, if any, with continued jurisdiction of the US state over ICANN, as a US non-profit? Please justify your response with appropriate examples, analysis, etc. Especially, please indicate if there are existing and past instances that highlight such problems. Also, in terms of future likelihood, please mention specific institutions/ laws etc of the US state that could be used to interfere with ICANN's ability to provide global governance services to all people of the world, including in non US countries.
(Pl note that I have replaced the last part on services to customers in other countries to global gov services to all people.)
While I strongly support keeping the incorporation in CA in the US
because the yet to tested accountability process depends on that,
I am happy to support a separate exercise seeking expert opinion on whether accountability process does or does not pertain to private law which can choose its own jurisdiction of adjudication (as most private contracts can), irrespective of whether ICANN is subject to US public laws or not, as having immunity from them, whether on basis of an international law incorporation of US state granted immunity under the mentioned immunity laws of the US. In this manner, to ascertain whether ICANN's new accountability mechanism can or cannot still be adjudicated upon by Californian law/ courts, on the basis of making the necessary provision in ICANN's bylaws.
I also
support an effort to look for immunity from laws that affect ICANN
ability to serve clients internationally - be they governments,
companies or individuals. This immunity should be restricted to ICANN
performance of its mission in relation to international entities and
_not_ relate to contract law, labor law or local ordinances on garbage
pickup.
Of course, that is exactly what is sought. And that is possible in my view to do with immunity under the US immunity provisions.
I do not think that this immunity can be gained in the WS2 timeframe,
but I do believe that WS2 could initiate yet another CCWG effort to work
on that, if the consensus of the group were to do so.
The purpose of the WS2 is to make recommendations and for ICANN to begin action on that basis. That can be done in a few months, if agreed to.. It is not about necessarily completing the process within WS2 time frame. If WS2 does not give this rec, and passes it on to WS3, the same problem will arise; if we would not have begun working on it, immunity cannot be gained within any WS# time period as well, which then becomes an infinite process .....
Let us be very clear; if we are working on immunity from US under relevant current provisions of US law, we can only recommend, as the wish of the world community. It if of course for the US state to act on it or not. But I would find it extremely strange for us not to arrive at a rec which in our view if what preserves the global public interest best, and is quite possible/ practical to do, just because we begin second guessing whether US state will actually do it, and if so, in what time frame. That I do not think if the job of this group or of CCWG as a whole.
But first we need more of the background information, the so-called
facts. We have to remember that with NTIA oversight, the application of
some laws may have been different than it might be going forward. We
need to understand whether that is the case or not, and whether there
are laws that could now be applied to ICANN's activities that were not
applied before.
Yes I agree. This is a kind of investigation that is needed. Meanwhile, let me add, and I think this is what Avri is already alluding to, as now being not under a US gov contract/ oversight, ICANN in fact , in one way, may be more exposed to the full power of all laws and institutions of the US state than before. It is now just another private organisation.
parminder
avri
On 26-Nov-16 05:08, parminder wrote:
On Saturday 26 November 2016 01:55 PM, Mueller, Milton L wrote:
Sorry, Parminder, I see this as a request for opinions, not facts.
The whole point of this exercise is to gain specific factual cases
that show actual issues, not to provide people with an excuse to
complain about what the “think are the problems.” I would reject
adding such a question to the list
Milton, you probably mean, you are against adding such a question :).
I dont see you have any authority to reject anything any more than I
have to reject your original formulation.
Was not the community accountability mechanism instituted just on the
basis of "what people think are the problems"? I saw no efforts to
gather facts with surveys like
"1. Are you aware of any instance in which anyone's business,
privacy, or ability to use or purchase DNS-related services, has been
affected by absence of a community accountability mechanism ?
If any such known 'facts' exist I am unaware of them and will like to
know.
In case of the question of ICANN's jurisdiction of incorporation
analytical facts are rather more evident, as raised in the civil
society statement.
The process we employ can lead towards certain kind of outcomes rather
than others. And I see this particular process being aimed at
foreclosing the jurisdiction of incorporation question. This is fact
the "application of public laws question" because immunity from such
application can be obtained even without changing ICANN's place of
jurisdiction.
Meaning ICANN can stay incorporated as US non profit in California,
and it exempted from application form various public laws as per the
US immunity act that I cited. I also said that, as far as I can
understand, it is possible to keep the private disputes arising from
ICANN's organisational system, including those about enforcement of
community powers, to be subject to US/ Californian law, strictly only
for such dispute resolution as per ICANN bylaws. We need to hear from
this group why this is not possible or not preferred...
parminder
*From:*ws2-jurisdiction-bounces@icann.org
[mailto:ws2-jurisdiction-bounces@icann.org <ws2-jurisdiction-bounces@icann.org>] *On Behalf Of *parminder
*Sent:* Wednesday, November 23, 2016 11:54 PM
*To:* ws2-jurisdiction@icann.org
*Subject:* Re: [Ws2-jurisdiction] first draft of fact solicitation
questions
I will like to add a general question to the below:
What do you think are the problems, if any, with continued
jurisdiction of the US state over ICANN, as a US non-profit? Please
justify your response with appropriate examples, analysis, etc.
Especially, if there are existing and past instances that highlight
such problems please indicate them.
parminder
On Wednesday 23 November 2016 09:50 PM, Mike Rodenbaugh wrote:
These seem well-stated, except perhaps they should not be looking
only for personal experience, but broaden the request to seek any
experience the responder is aware of? So I suggest something like:
1. Are you aware of any instance in which anyone's
business, privacy, or ability to use or purchase DNS-related
services, has been affected by ICANN's jurisdiction in any way?
If the answer is Yes, please describe specific cases or
incidents, including the date, the parties involved, and links to
any relevant documents.
2. Are you aware of any instance in which ICANN's
jurisdiction affected any dispute resolution process or
litigation related to domain names?
If the answer is Yes, please describe specific cases or
incidents, including the date, the parties involved, and links to
any relevant documents.
Mike Rodenbaugh
RODENBAUGH LAW
tel/fax: +1.415.738.8087
On Wed, Nov 23, 2016 at 6:47 AM, Mueller, Milton L
<milton@gatech.edu <mailto:milton@gatech.edu> <milton@gatech.edu>> wrote:
CW and I have agreed on the following draft:
*Request for stakeholder input on jurisdiction issues*
The Jurisdiction subgroup of the CCWG Accountability is
asking for the community to provide factual input on the
following questions:
1. Has your business, your privacy or your ability to
use or purchase DNS-related services, been affected by
ICANN's jurisdiction in any way?
If the answer is Yes, please describe specific cases or
incidents, including the date, the parties involved, and
links to any relevant documents.
2. Has ICANN's jurisdiction affected any dispute
resolution process or litigation related to domain names you
have been involved in?
If the answer is Yes, please describe specific cases or
incidents, including the date, the parties involved, and
links to any relevant documents.
Dr. Milton L. Mueller
Professor, School of Public Policy
Georgia Institute of Technology
_______________________________________________
Ws2-jurisdiction mailing list
Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> <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> <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
---
This email has been checked for viruses by Avast antivirus software.
https://www.avast.com/antivirus
_______________________________________________
Ws2-jurisdiction mailing list
Ws2-jurisdiction@icann.org
https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
_______________________________________________ Ws2-jurisdiction mailing listWs2-jurisdiction@icann.orghttps://mm.icann.org/mailman/listinfo/ws2-jurisdiction
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
Hi, I do not understand why the connection to other possible jurisdiction. The fact is that we are within a US jurisdiction. avri On 28-Nov-16 16:41, Paul Rosenzweig wrote:
I would oppose this as it relates to future risks unless the responders also identified other potential jurisdictions where those future risks would not be realized and assessed the future risks of those potential jurisdictions of transfer.
Speculation about future problems is fruitless unless it is comprehensive. Retrospective inquiry as to past problems is fact based and useful. Let’s do the useful …
Paul
Paul Rosenzweig
paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com>
O: +1 (202) 547-0660
M: +1 (202) 329-9650
VOIP: +1 (202) 738-1739
www.redbranchconsulting.com <http://www.redbranchconsulting.com/>
My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684
*From:*ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] *On Behalf Of *Pedro Ivo Ferraz da Silva *Sent:* Monday, November 28, 2016 4:07 PM *To:* ws2-jurisdiction@icann.org *Subject:* [Ws2-jurisdiction] RES: first draft of fact solicitation questions
Dear subgroup colleagues,
I would like to support Parminder's rewritten question below. I believe it perfectly complies with the general requirement of a evidence based approach and it complements the two original questions since it introduces the element of future likelihood.
Our group should not only make recommendations based on problems/issues identified in the past, but also on perceived risks and threats that the current jurisdictional arrangement entails.
I also support Mike Rodenbaugh's suggestion to broaden the scope of the questions. I think we should welcome the input of any stakeholder that may have facts and genuine (well-founded) issues to present.
Finally, in order to eliminate the possibility of confusion, I would support dividing the document in two sessions: 1. Fact solicitation/ 2. Perceived risks
Regards,
Secretário Pedro Ivo Ferraz da Silva
Divisão da Sociedade da Informação (DI)
Ministério das Relações Exteriores - Brasil
T: + 55 61 2030-6609
Secretary Pedro Ivo Ferraz da Silva
Division of Information Society (DI)
Ministry of External Relations - Brazil
T: + 55 61 2030-6609
*De:*ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] *Em nome de *parminder *Enviada em:* domingo, 27 de novembro de 2016 04:34 *Para:* ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> *Assunto:* Re: [Ws2-jurisdiction] first draft of fact solicitation questions
On Saturday 26 November 2016 08:23 PM, avri doria wrote:
Hi,
I am among those who would like to see a question included along the
lines Parminder suggests. It should, however, be made by specific
reference to existing laws that could be used to interfere with ICANN's
ability to provide service to customers in other countries.
I think that Avri's proposal would be a good way to go about it, as long as we do not the circumscribe the inquiry too much. I would prefer a general question, plus a specific component, like
What do you think are the problems, if any, with continued jurisdiction of the US state over ICANN, as a US non-profit? Please justify your response with appropriate examples, analysis, etc. Especially, please indicate if there are existing and past instances that highlight such problems. Also, in terms of future likelihood, please mention specific institutions/ laws etc of the US state that could be used to interfere with ICANN's ability to provide global governance services to all people of the world, including in non US countries.
(Pl note that I have replaced the last part on services to customers in other countries to global gov services to all people.)
While I strongly support keeping the incorporation in CA in the US because the yet to tested accountability process depends on that,
I am happy to support a separate exercise seeking expert opinion on whether accountability process does or does not pertain to private law which can choose its own jurisdiction of adjudication (as most private contracts can), irrespective of whether ICANN is subject to US public laws or not, as having immunity from them, whether on basis of an international law incorporation of US state granted immunity under the mentioned immunity laws of the US. In this manner, to ascertain whether ICANN's new accountability mechanism can or cannot still be adjudicated upon by Californian law/ courts, on the basis of making the necessary provision in ICANN's bylaws.
I also support an effort to look for immunity from laws that affect ICANN ability to serve clients internationally - be they governments, companies or individuals. This immunity should be restricted to ICANN performance of its mission in relation to international entities and _not_ relate to contract law, labor law or local ordinances on garbage pickup.
Of course, that is exactly what is sought. And that is possible in my view to do with immunity under the US immunity provisions.
I do not think that this immunity can be gained in the WS2 timeframe, but I do believe that WS2 could initiate yet another CCWG effort to work on that, if the consensus of the group were to do so.
The purpose of the WS2 is to make recommendations and for ICANN to begin action on that basis. That can be done in a few months, if agreed to.. It is not about necessarily completing the process within WS2 time frame. If WS2 does not give this rec, and passes it on to WS3, the same problem will arise; if we would not have begun working on it, immunity cannot be gained within any WS# time period as well, which then becomes an infinite process .....
Let us be very clear; if we are working on immunity from US under relevant current provisions of US law, we can only recommend, as the wish of the world community. It if of course for the US state to act on it or not. But I would find it extremely strange for us not to arrive at a rec which in our view if what preserves the global public interest best, and is quite possible/ practical to do, just because we begin second guessing whether US state will actually do it, and if so, in what time frame. That I do not think if the job of this group or of CCWG as a whole.
But first we need more of the background information, the so-called facts. We have to remember that with NTIA oversight, the application of some laws may have been different than it might be going forward. We need to understand whether that is the case or not, and whether there are laws that could now be applied to ICANN's activities that were not applied before.
Yes I agree. This is a kind of investigation that is needed. Meanwhile, let me add, and I think this is what Avri is already alluding to, as now being not under a US gov contract/ oversight, ICANN in fact , in one way, may be more exposed to the full power of all laws and institutions of the US state than before. It is now just another private organisation.
parminder
avri
On 26-Nov-16 05:08, parminder wrote:
On Saturday 26 November 2016 01:55 PM, Mueller, Milton L wrote:
Sorry, Parminder, I see this as a request for opinions, not facts.
The whole point of this exercise is to gain specific factual cases
that show actual issues, not to provide people with an excuse to
complain about what the “think are the problems.” I would reject
adding such a question to the list
Milton, you probably mean, you are against adding such a question :).
I dont see you have any authority to reject anything any more than I
have to reject your original formulation.
Was not the community accountability mechanism instituted just on the
basis of "what people think are the problems"? I saw no efforts to
gather facts with surveys like
"1. Are you aware of any instance in which anyone's business,
privacy, or ability to use or purchase DNS-related services, has been
affected by absence of a community accountability mechanism ?
If any such known 'facts' exist I am unaware of them and will like to
know.
In case of the question of ICANN's jurisdiction of incorporation
analytical facts are rather more evident, as raised in the civil
society statement.
The process we employ can lead towards certain kind of outcomes rather
than others. And I see this particular process being aimed at
foreclosing the jurisdiction of incorporation question. This is fact
the "application of public laws question" because immunity from such
application can be obtained even without changing ICANN's place of
jurisdiction.
Meaning ICANN can stay incorporated as US non profit in California,
and it exempted from application form various public laws as per the
US immunity act that I cited. I also said that, as far as I can
understand, it is possible to keep the private disputes arising from
ICANN's organisational system, including those about enforcement of
community powers, to be subject to US/ Californian law, strictly only
for such dispute resolution as per ICANN bylaws. We need to hear from
this group why this is not possible or not preferred...
parminder
*From:*ws2-jurisdiction-bounces@icann.org
[mailto:ws2-jurisdiction-bounces@icann.org] *On Behalf Of *parminder
*Sent:* Wednesday, November 23, 2016 11:54 PM
*To:* ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org>
*Subject:* Re: [Ws2-jurisdiction] first draft of fact solicitation
questions
I will like to add a general question to the below:
What do you think are the problems, if any, with continued
jurisdiction of the US state over ICANN, as a US non-profit? Please
justify your response with appropriate examples, analysis, etc.
Especially, if there are existing and past instances that highlight
such problems please indicate them.
parminder
On Wednesday 23 November 2016 09:50 PM, Mike Rodenbaugh wrote:
These seem well-stated, except perhaps they should not be looking
only for personal experience, but broaden the request to seek any
experience the responder is aware of? So I suggest something like:
1. Are you aware of any instance in which anyone's
business, privacy, or ability to use or purchase DNS-related
services, has been affected by ICANN's jurisdiction in any way?
If the answer is Yes, please describe specific cases or
incidents, including the date, the parties involved, and links to
any relevant documents.
2. Are you aware of any instance in which ICANN's
jurisdiction affected any dispute resolution process or
litigation related to domain names?
If the answer is Yes, please describe specific cases or
incidents, including the date, the parties involved, and links to
any relevant documents.
Mike Rodenbaugh
RODENBAUGH LAW
tel/fax: +1.415.738.8087
On Wed, Nov 23, 2016 at 6:47 AM, Mueller, Milton L
<milton@gatech.edu <mailto:milton@gatech.edu> <mailto:milton@gatech.edu> <mailto:milton@gatech.edu>> wrote:
CW and I have agreed on the following draft:
*Request for stakeholder input on jurisdiction issues*
The Jurisdiction subgroup of the CCWG Accountability is
asking for the community to provide factual input on the
following questions:
1. Has your business, your privacy or your ability to
use or purchase DNS-related services, been affected by
ICANN's jurisdiction in any way?
If the answer is Yes, please describe specific cases or
incidents, including the date, the parties involved, and
links to any relevant documents.
2. Has ICANN's jurisdiction affected any dispute
resolution process or litigation related to domain names you
have been involved in?
If the answer is Yes, please describe specific cases or
incidents, including the date, the parties involved, and
links to any relevant documents.
Dr. Milton L. Mueller
Professor, School of Public Policy
Georgia Institute of Technology
_______________________________________________
Ws2-jurisdiction mailing list
Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> <mailto: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> <mailto: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
--- This email has been checked for viruses by Avast antivirus software. https://www.avast.com/antivirus
_______________________________________________ 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 https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
--- This email has been checked for viruses by Avast antivirus software. https://www.avast.com/antivirus
Yup, and if we are to restrict ourselves to historical problems the limitation to US issues is perfectly understandable. But if we are going to allow speculation as to potential future issues that have not arisen and may never arise based on analysis that is grounded only in theory without any connection to practice then the natural question is whether those speculative harms would be ameliorated by changing jurisdiction and also whether changing would give rise to other, different, speculative harms. If we want to just guess, let's guess not only about the horrors of remaining in the US, but also the horrors of moving. P Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 www.redbranchconsulting.com My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684 -----Original Message----- From: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of avri doria Sent: Tuesday, November 29, 2016 1:29 PM To: ws2-jurisdiction@icann.org Subject: Re: [Ws2-jurisdiction] RES: first draft of fact solicitation questions Hi, I do not understand why the connection to other possible jurisdiction. The fact is that we are within a US jurisdiction. avri On 28-Nov-16 16:41, Paul Rosenzweig wrote:
I would oppose this as it relates to future risks unless the responders also identified other potential jurisdictions where those future risks would not be realized and assessed the future risks of those potential jurisdictions of transfer.
Speculation about future problems is fruitless unless it is comprehensive. Retrospective inquiry as to past problems is fact based and useful. Lets do the useful
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=0x9A830097CA06668 4
*From:*ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] *On Behalf Of *Pedro Ivo Ferraz da Silva *Sent:* Monday, November 28, 2016 4:07 PM *To:* ws2-jurisdiction@icann.org *Subject:* [Ws2-jurisdiction] RES: first draft of fact solicitation questions
Dear subgroup colleagues,
I would like to support Parminder's rewritten question below. I believe it perfectly complies with the general requirement of a evidence based approach and it complements the two original questions since it introduces the element of future likelihood.
Our group should not only make recommendations based on problems/issues identified in the past, but also on perceived risks and threats that the current jurisdictional arrangement entails.
I also support Mike Rodenbaugh's suggestion to broaden the scope of the questions. I think we should welcome the input of any stakeholder that may have facts and genuine (well-founded) issues to present.
Finally, in order to eliminate the possibility of confusion, I would support dividing the document in two sessions: 1. Fact solicitation/ 2. Perceived risks
Regards,
Secretário Pedro Ivo Ferraz da Silva
Divisão da Sociedade da Informação (DI)
Ministério das Relações Exteriores - Brasil
T: + 55 61 2030-6609
Secretary Pedro Ivo Ferraz da Silva
Division of Information Society (DI)
Ministry of External Relations - Brazil
T: + 55 61 2030-6609
*De:*ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] *Em nome de *parminder *Enviada em:* domingo, 27 de novembro de 2016 04:34 *Para:* ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> *Assunto:* Re: [Ws2-jurisdiction] first draft of fact solicitation questions
On Saturday 26 November 2016 08:23 PM, avri doria wrote:
Hi,
I am among those who would like to see a question included along the
lines Parminder suggests. It should, however, be made by specific
reference to existing laws that could be used to interfere with ICANN's
ability to provide service to customers in other countries.
I think that Avri's proposal would be a good way to go about it, as long as we do not the circumscribe the inquiry too much. I would prefer a general question, plus a specific component, like
What do you think are the problems, if any, with continued jurisdiction of the US state over ICANN, as a US non-profit? Please justify your response with appropriate examples, analysis, etc. Especially, please indicate if there are existing and past instances that highlight such problems. Also, in terms of future likelihood, please mention specific institutions/ laws etc of the US state that could be used to interfere with ICANN's ability to provide global governance services to all people of the world, including in non US countries.
(Pl note that I have replaced the last part on services to customers in other countries to global gov services to all people.)
While I strongly support keeping the incorporation in CA in the US because the yet to tested accountability process depends on that,
I am happy to support a separate exercise seeking expert opinion on whether accountability process does or does not pertain to private law which can choose its own jurisdiction of adjudication (as most private contracts can), irrespective of whether ICANN is subject to US public laws or not, as having immunity from them, whether on basis of an international law incorporation of US state granted immunity under the mentioned immunity laws of the US. In this manner, to ascertain whether ICANN's new accountability mechanism can or cannot still be adjudicated upon by Californian law/ courts, on the basis of making the necessary provision in ICANN's bylaws.
I also support an effort to look for immunity from laws that affect ICANN ability to serve clients internationally - be they governments, companies or individuals. This immunity should be restricted to ICANN performance of its mission in relation to international entities and _not_ relate to contract law, labor law or local ordinances on garbage pickup.
Of course, that is exactly what is sought. And that is possible in my view to do with immunity under the US immunity provisions.
I do not think that this immunity can be gained in the WS2 timeframe, but I do believe that WS2 could initiate yet another CCWG effort to work on that, if the consensus of the group were to do so.
The purpose of the WS2 is to make recommendations and for ICANN to begin action on that basis. That can be done in a few months, if agreed to.. It is not about necessarily completing the process within WS2 time frame. If WS2 does not give this rec, and passes it on to WS3, the same problem will arise; if we would not have begun working on it, immunity cannot be gained within any WS# time period as well, which then becomes an infinite process .....
Let us be very clear; if we are working on immunity from US under relevant current provisions of US law, we can only recommend, as the wish of the world community. It if of course for the US state to act on it or not. But I would find it extremely strange for us not to arrive at a rec which in our view if what preserves the global public interest best, and is quite possible/ practical to do, just because we begin second guessing whether US state will actually do it, and if so, in what time frame. That I do not think if the job of this group or of CCWG as a whole.
But first we need more of the background information, the so-called facts. We have to remember that with NTIA oversight, the application of some laws may have been different than it might be going forward. We need to understand whether that is the case or not, and whether there are laws that could now be applied to ICANN's activities that were not applied before.
Yes I agree. This is a kind of investigation that is needed. Meanwhile, let me add, and I think this is what Avri is already alluding to, as now being not under a US gov contract/ oversight, ICANN in fact , in one way, may be more exposed to the full power of all laws and institutions of the US state than before. It is now just another private organisation.
parminder
avri
On 26-Nov-16 05:08, parminder wrote:
On Saturday 26 November 2016 01:55 PM, Mueller, Milton L wrote:
Sorry, Parminder, I see this as a request for opinions, not facts.
The whole point of this exercise is to gain specific factual cases
that show actual issues, not to provide people with an excuse to
complain about what the think are the problems. I would reject
adding such a question to the list
Milton, you probably mean, you are against adding such a question :).
I dont see you have any authority to reject anything any more than I
have to reject your original formulation.
Was not the community accountability mechanism instituted just on the
basis of "what people think are the problems"? I saw no efforts to
gather facts with surveys like
"1. Are you aware of any instance in which anyone's business,
privacy, or ability to use or purchase DNS-related services, has been
affected by absence of a community accountability mechanism ?
If any such known 'facts' exist I am unaware of them and will like to
know.
In case of the question of ICANN's jurisdiction of incorporation
analytical facts are rather more evident, as raised in the civil
society statement.
The process we employ can lead towards certain kind of outcomes rather
than others. And I see this particular process being aimed at
foreclosing the jurisdiction of incorporation question. This is fact
the "application of public laws question" because immunity from such
application can be obtained even without changing ICANN's place of
jurisdiction.
Meaning ICANN can stay incorporated as US non profit in California,
and it exempted from application form various public laws as per the
US immunity act that I cited. I also said that, as far as I can
understand, it is possible to keep the private disputes arising from
ICANN's organisational system, including those about enforcement of
community powers, to be subject to US/ Californian law, strictly only
for such dispute resolution as per ICANN bylaws. We need to hear from
this group why this is not possible or not preferred...
parminder
*From:*ws2-jurisdiction-bounces@icann.org
[mailto:ws2-jurisdiction-bounces@icann.org] *On Behalf Of *parminder
*Sent:* Wednesday, November 23, 2016 11:54 PM
*To:* ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org>
*Subject:* Re: [Ws2-jurisdiction] first draft of fact solicitation
questions
I will like to add a general question to the below:
What do you think are the problems, if any, with continued
jurisdiction of the US state over ICANN, as a US non-profit? Please
justify your response with appropriate examples, analysis, etc.
Especially, if there are existing and past instances that highlight
such problems please indicate them.
parminder
On Wednesday 23 November 2016 09:50 PM, Mike Rodenbaugh wrote:
These seem well-stated, except perhaps they should not be looking
only for personal experience, but broaden the request to seek any
experience the responder is aware of? So I suggest something like:
1. Are you aware of any instance in which anyone's
business, privacy, or ability to use or purchase DNS-related
services, has been affected by ICANN's jurisdiction in any way?
If the answer is Yes, please describe specific cases or
incidents, including the date, the parties involved, and links to
any relevant documents.
2. Are you aware of any instance in which ICANN's
jurisdiction affected any dispute resolution process or
litigation related to domain names?
If the answer is Yes, please describe specific cases or
incidents, including the date, the parties involved, and links to
any relevant documents.
Mike Rodenbaugh
RODENBAUGH LAW
tel/fax: +1.415.738.8087
On Wed, Nov 23, 2016 at 6:47 AM, Mueller, Milton L
<milton@gatech.edu <mailto:milton@gatech.edu> <mailto:milton@gatech.edu> <mailto:milton@gatech.edu>> wrote:
CW and I have agreed on the following draft:
*Request for stakeholder input on jurisdiction issues*
The Jurisdiction subgroup of the CCWG Accountability is
asking for the community to provide factual input on the
following questions:
1. Has your business, your privacy or your ability to
use or purchase DNS-related services, been affected by
ICANN's jurisdiction in any way?
If the answer is Yes, please describe specific cases or
incidents, including the date, the parties involved, and
links to any relevant documents.
2. Has ICANN's jurisdiction affected any dispute
resolution process or litigation related to domain names you
have been involved in?
If the answer is Yes, please describe specific cases or
incidents, including the date, the parties involved, and
links to any relevant documents.
Dr. Milton L. Mueller
Professor, School of Public Policy
Georgia Institute of Technology
_______________________________________________
Ws2-jurisdiction mailing list
Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> <mailto: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> <mailto: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
--- This email has been checked for viruses by Avast antivirus software. https://www.avast.com/antivirus
_______________________________________________ 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 https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
--- This email has been checked for viruses by Avast antivirus software. https://www.avast.com/antivirus _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
Very well put, albeit mildly prolix. +1 from me! On 29/11/16 19:48, Paul Rosenzweig wrote:
Yup, and if we are to restrict ourselves to historical problems the limitation to US issues is perfectly understandable. But if we are going to allow speculation as to potential future issues that have not arisen and may never arise based on analysis that is grounded only in theory without any connection to practice then the natural question is whether those speculative harms would be ameliorated by changing jurisdiction and also whether changing would give rise to other, different, speculative harms. If we want to just guess, let's guess not only about the horrors of remaining in the US, but also the horrors of moving.
P
Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 www.redbranchconsulting.com My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684
-----Original Message----- From: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of avri doria Sent: Tuesday, November 29, 2016 1:29 PM To: ws2-jurisdiction@icann.org Subject: Re: [Ws2-jurisdiction] RES: first draft of fact solicitation questions
Hi,
I do not understand why the connection to other possible jurisdiction. The fact is that we are within a US jurisdiction. avri
On 28-Nov-16 16:41, Paul Rosenzweig wrote:
I would oppose this as it relates to future risks unless the responders also identified other potential jurisdictions where those future risks would not be realized and assessed the future risks of those potential jurisdictions of transfer.
Speculation about future problems is fruitless unless it is comprehensive. Retrospective inquiry as to past problems is fact based and useful. Let’s do the useful …
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=0x9A830097CA06668 4
*From:*ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] *On Behalf Of *Pedro Ivo Ferraz da Silva *Sent:* Monday, November 28, 2016 4:07 PM *To:* ws2-jurisdiction@icann.org *Subject:* [Ws2-jurisdiction] RES: first draft of fact solicitation questions
Dear subgroup colleagues,
I would like to support Parminder's rewritten question below. I believe it perfectly complies with the general requirement of a evidence based approach and it complements the two original questions since it introduces the element of future likelihood.
Our group should not only make recommendations based on problems/issues identified in the past, but also on perceived risks and threats that the current jurisdictional arrangement entails.
I also support Mike Rodenbaugh's suggestion to broaden the scope of the questions. I think we should welcome the input of any stakeholder that may have facts and genuine (well-founded) issues to present.
Finally, in order to eliminate the possibility of confusion, I would support dividing the document in two sessions: 1. Fact solicitation/ 2. Perceived risks
Regards,
Secretário Pedro Ivo Ferraz da Silva
Divisão da Sociedade da Informação (DI)
Ministério das Relações Exteriores - Brasil
T: + 55 61 2030-6609
Secretary Pedro Ivo Ferraz da Silva
Division of Information Society (DI)
Ministry of External Relations - Brazil
T: + 55 61 2030-6609
*De:*ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] *Em nome de *parminder *Enviada em:* domingo, 27 de novembro de 2016 04:34 *Para:* ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> *Assunto:* Re: [Ws2-jurisdiction] first draft of fact solicitation questions
On Saturday 26 November 2016 08:23 PM, avri doria wrote:
Hi,
I am among those who would like to see a question included along the
lines Parminder suggests. It should, however, be made by specific
reference to existing laws that could be used to interfere with ICANN's
ability to provide service to customers in other countries.
I think that Avri's proposal would be a good way to go about it, as long as we do not the circumscribe the inquiry too much. I would prefer a general question, plus a specific component, like
What do you think are the problems, if any, with continued jurisdiction of the US state over ICANN, as a US non-profit? Please justify your response with appropriate examples, analysis, etc. Especially, please indicate if there are existing and past instances that highlight such problems. Also, in terms of future likelihood, please mention specific institutions/ laws etc of the US state that could be used to interfere with ICANN's ability to provide global governance services to all people of the world, including in non US countries.
(Pl note that I have replaced the last part on services to customers in other countries to global gov services to all people.)
While I strongly support keeping the incorporation in CA in the US because the yet to tested accountability process depends on that,
I am happy to support a separate exercise seeking expert opinion on whether accountability process does or does not pertain to private law which can choose its own jurisdiction of adjudication (as most private contracts can), irrespective of whether ICANN is subject to US public laws or not, as having immunity from them, whether on basis of an international law incorporation of US state granted immunity under the mentioned immunity laws of the US. In this manner, to ascertain whether ICANN's new accountability mechanism can or cannot still be adjudicated upon by Californian law/ courts, on the basis of making the necessary provision in ICANN's bylaws.
I also support an effort to look for immunity from laws that affect ICANN ability to serve clients internationally - be they governments, companies or individuals. This immunity should be restricted to ICANN performance of its mission in relation to international entities and _not_ relate to contract law, labor law or local ordinances on garbage pickup.
Of course, that is exactly what is sought. And that is possible in my view to do with immunity under the US immunity provisions.
I do not think that this immunity can be gained in the WS2 timeframe, but I do believe that WS2 could initiate yet another CCWG effort to work on that, if the consensus of the group were to do so.
The purpose of the WS2 is to make recommendations and for ICANN to begin action on that basis. That can be done in a few months, if agreed to.. It is not about necessarily completing the process within WS2 time frame. If WS2 does not give this rec, and passes it on to WS3, the same problem will arise; if we would not have begun working on it, immunity cannot be gained within any WS# time period as well, which then becomes an infinite process .....
Let us be very clear; if we are working on immunity from US under relevant current provisions of US law, we can only recommend, as the wish of the world community. It if of course for the US state to act on it or not. But I would find it extremely strange for us not to arrive at a rec which in our view if what preserves the global public interest best, and is quite possible/ practical to do, just because we begin second guessing whether US state will actually do it, and if so, in what time frame. That I do not think if the job of this group or of CCWG as a whole.
But first we need more of the background information, the so-called facts. We have to remember that with NTIA oversight, the application of some laws may have been different than it might be going forward. We need to understand whether that is the case or not, and whether there are laws that could now be applied to ICANN's activities that were not applied before.
Yes I agree. This is a kind of investigation that is needed. Meanwhile, let me add, and I think this is what Avri is already alluding to, as now being not under a US gov contract/ oversight, ICANN in fact , in one way, may be more exposed to the full power of all laws and institutions of the US state than before. It is now just another private organisation.
parminder
avri
On 26-Nov-16 05:08, parminder wrote:
On Saturday 26 November 2016 01:55 PM, Mueller, Milton L wrote:
Sorry, Parminder, I see this as a request for opinions, not facts.
The whole point of this exercise is to gain specific factual cases
that show actual issues, not to provide people with an excuse to
complain about what the “think are the problems.” I would reject
adding such a question to the list
Milton, you probably mean, you are against adding such a question :).
I dont see you have any authority to reject anything any more than I
have to reject your original formulation.
Was not the community accountability mechanism instituted just on the
basis of "what people think are the problems"? I saw no efforts to
gather facts with surveys like
"1. Are you aware of any instance in which anyone's business,
privacy, or ability to use or purchase DNS-related services, has been
affected by absence of a community accountability mechanism ?
If any such known 'facts' exist I am unaware of them and will like to
know.
In case of the question of ICANN's jurisdiction of incorporation
analytical facts are rather more evident, as raised in the civil
society statement.
The process we employ can lead towards certain kind of outcomes rather
than others. And I see this particular process being aimed at
foreclosing the jurisdiction of incorporation question. This is fact
the "application of public laws question" because immunity from such
application can be obtained even without changing ICANN's place of
jurisdiction.
Meaning ICANN can stay incorporated as US non profit in California,
and it exempted from application form various public laws as per the
US immunity act that I cited. I also said that, as far as I can
understand, it is possible to keep the private disputes arising from
ICANN's organisational system, including those about enforcement of
community powers, to be subject to US/ Californian law, strictly only
for such dispute resolution as per ICANN bylaws. We need to hear from
this group why this is not possible or not preferred...
parminder
*From:*ws2-jurisdiction-bounces@icann.org
[mailto:ws2-jurisdiction-bounces@icann.org] *On Behalf Of *parminder
*Sent:* Wednesday, November 23, 2016 11:54 PM
*To:* ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org>
*Subject:* Re: [Ws2-jurisdiction] first draft of fact solicitation
questions
I will like to add a general question to the below:
What do you think are the problems, if any, with continued
jurisdiction of the US state over ICANN, as a US non-profit? Please
justify your response with appropriate examples, analysis, etc.
Especially, if there are existing and past instances that highlight
such problems please indicate them.
parminder
On Wednesday 23 November 2016 09:50 PM, Mike Rodenbaugh wrote:
These seem well-stated, except perhaps they should not be looking
only for personal experience, but broaden the request to seek any
experience the responder is aware of? So I suggest something like:
1. Are you aware of any instance in which anyone's
business, privacy, or ability to use or purchase DNS-related
services, has been affected by ICANN's jurisdiction in any way?
If the answer is Yes, please describe specific cases or
incidents, including the date, the parties involved, and links to
any relevant documents.
2. Are you aware of any instance in which ICANN's
jurisdiction affected any dispute resolution process or
litigation related to domain names?
If the answer is Yes, please describe specific cases or
incidents, including the date, the parties involved, and links to
any relevant documents.
Mike Rodenbaugh
RODENBAUGH LAW
tel/fax: +1.415.738.8087
On Wed, Nov 23, 2016 at 6:47 AM, Mueller, Milton L
<milton@gatech.edu <mailto:milton@gatech.edu> <mailto:milton@gatech.edu> <mailto:milton@gatech.edu>> wrote:
CW and I have agreed on the following draft:
*Request for stakeholder input on jurisdiction issues*
The Jurisdiction subgroup of the CCWG Accountability is
asking for the community to provide factual input on the
following questions:
1. Has your business, your privacy or your ability to
use or purchase DNS-related services, been affected by
ICANN's jurisdiction in any way?
If the answer is Yes, please describe specific cases or
incidents, including the date, the parties involved, and
links to any relevant documents.
2. Has ICANN's jurisdiction affected any dispute
resolution process or litigation related to domain names you
have been involved in?
If the answer is Yes, please describe specific cases or
incidents, including the date, the parties involved, and
links to any relevant documents.
Dr. Milton L. Mueller
Professor, School of Public Policy
Georgia Institute of Technology
_______________________________________________
Ws2-jurisdiction mailing list
Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> <mailto: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> <mailto: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
--- This email has been checked for viruses by Avast antivirus software. https://www.avast.com/antivirus
_______________________________________________ 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 https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
--- This email has been checked for viruses by Avast antivirus software. https://www.avast.com/antivirus
_______________________________________________ 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
Pedro, At no point has anyone ever suggested that we should "only make recommendations based on problems/issues identified in the past." That is a fallacy, and had no bearing on what type of solicitation we are going to make. Therefore, it's inappropriate to cite that mistaken idea as support for any proposition. It has always been our plan to look at "perceived risks and threats" -- and also at perceived advantages and protections -- "that the current jurisdictional arrangement entails." That is what we have been doing. The lack of fact-based experiences coming from within the group led to the suggestion that we quickly solicit such experiences from outside the group. That's all that was intended in this exercise. I do not see this question as being in any way "evidence based" merely because it asks for "evidence." In any event, what we are trying to achieve is an "*experience-based*" inquiry, not merely an "evidence based" inquiry. I also note that the question exhibits a high degree of bias -- it only asks about "problems" and "interference". An unbiased question would also ask about advantages and protections, and ways in which the current jurisdictional arrangement supports ICANN's ability to carry out its mission. i also find the focus on the concept of the "jurisdiction of the US state over ICANN," to be quite puzzling. The primary focus of this group has been on the effects of "governing law" (whether it results from a legal or physical location of ICANN or from a contractual provision, etc.) and not on some idea that the US Government is somehow poised to strike and exercise unilateral power over ICANN in some undefined (and possibly non-existent) fashion. If some version of this question is asked at all (after resolving the serious issues in its construction), it should be asked of members of this group. Opinions and analysis are the heart of any working group's work. This work should not be "crowdsourced." Meanwhile, I note that the Google Drive document we are actually supposed to be working on has not been touched since November 14 (other than some minor edits I made on November 21). That's two weeks in which our work could have advanced, but did not. As noted before, we need to refocus on our work in progress if we are going to make progress. Greg On Mon, Nov 28, 2016 at 4:07 PM, Pedro Ivo Ferraz da Silva < pedro.ivo@itamaraty.gov.br> wrote:
Dear subgroup colleagues,
I would like to support Parminder's rewritten question below. I believe it perfectly complies with the general requirement of a evidence based approach and it complements the two original questions since it introduces the element of future likelihood.
Our group should not only make recommendations based on problems/issues identified in the past, but also on perceived risks and threats that the current jurisdictional arrangement entails.
I also support Mike Rodenbaugh's suggestion to broaden the scope of the questions. I think we should welcome the input of any stakeholder that may have facts and genuine (well-founded) issues to present.
Finally, in order to eliminate the possibility of confusion, I would support dividing the document in two sessions: 1. Fact solicitation/ 2. Perceived risks
Regards,
Secretário Pedro Ivo Ferraz da Silva
Divisão da Sociedade da Informação (DI)
Ministério das Relações Exteriores - Brasil
T: + 55 61 2030-6609
Secretary Pedro Ivo Ferraz da Silva
Division of Information Society (DI)
Ministry of External Relations - Brazil
T: + 55 61 2030-6609
*De:* ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction- bounces@icann.org] *Em nome de *parminder *Enviada em:* domingo, 27 de novembro de 2016 04:34 *Para:* ws2-jurisdiction@icann.org *Assunto:* Re: [Ws2-jurisdiction] first draft of fact solicitation questions
On Saturday 26 November 2016 08:23 PM, avri doria wrote:
Hi,
I am among those who would like to see a question included along the
lines Parminder suggests. It should, however, be made by specific
reference to existing laws that could be used to interfere with ICANN's
ability to provide service to customers in other countries.
I think that Avri's proposal would be a good way to go about it, as long as we do not the circumscribe the inquiry too much. I would prefer a general question, plus a specific component, like
What do you think are the problems, if any, with continued jurisdiction of the US state over ICANN, as a US non-profit? Please justify your response with appropriate examples, analysis, etc. Especially, please indicate if there are existing and past instances that highlight such problems. Also, in terms of future likelihood, please mention specific institutions/ laws etc of the US state that could be used to interfere with ICANN's ability to provide global governance services to all people of the world, including in non US countries.
(Pl note that I have replaced the last part on services to customers in other countries to global gov services to all people.)
While I strongly support keeping the incorporation in CA in the US
because the yet to tested accountability process depends on that,
I am happy to support a separate exercise seeking expert opinion on whether accountability process does or does not pertain to private law which can choose its own jurisdiction of adjudication (as most private contracts can), irrespective of whether ICANN is subject to US public laws or not, as having immunity from them, whether on basis of an international law incorporation of US state granted immunity under the mentioned immunity laws of the US. In this manner, to ascertain whether ICANN's new accountability mechanism can or cannot still be adjudicated upon by Californian law/ courts, on the basis of making the necessary provision in ICANN's bylaws.
I also
support an effort to look for immunity from laws that affect ICANN
ability to serve clients internationally - be they governments,
companies or individuals. This immunity should be restricted to ICANN
performance of its mission in relation to international entities and
_not_ relate to contract law, labor law or local ordinances on garbage
pickup.
Of course, that is exactly what is sought. And that is possible in my view to do with immunity under the US immunity provisions.
I do not think that this immunity can be gained in the WS2 timeframe,
but I do believe that WS2 could initiate yet another CCWG effort to work
on that, if the consensus of the group were to do so.
The purpose of the WS2 is to make recommendations and for ICANN to begin action on that basis. That can be done in a few months, if agreed to.. It is not about necessarily completing the process within WS2 time frame. If WS2 does not give this rec, and passes it on to WS3, the same problem will arise; if we would not have begun working on it, immunity cannot be gained within any WS# time period as well, which then becomes an infinite process .....
Let us be very clear; if we are working on immunity from US under relevant current provisions of US law, we can only recommend, as the wish of the world community. It if of course for the US state to act on it or not. But I would find it extremely strange for us not to arrive at a rec which in our view if what preserves the global public interest best, and is quite possible/ practical to do, just because we begin second guessing whether US state will actually do it, and if so, in what time frame. That I do not think if the job of this group or of CCWG as a whole.
But first we need more of the background information, the so-called
facts. We have to remember that with NTIA oversight, the application of
some laws may have been different than it might be going forward. We
need to understand whether that is the case or not, and whether there
are laws that could now be applied to ICANN's activities that were not
applied before.
Yes I agree. This is a kind of investigation that is needed. Meanwhile, let me add, and I think this is what Avri is already alluding to, as now being not under a US gov contract/ oversight, ICANN in fact , in one way, may be more exposed to the full power of all laws and institutions of the US state than before. It is now just another private organisation.
parminder
avri
On 26-Nov-16 05:08, parminder wrote:
On Saturday 26 November 2016 01:55 PM, Mueller, Milton L wrote:
Sorry, Parminder, I see this as a request for opinions, not facts.
The whole point of this exercise is to gain specific factual cases
that show actual issues, not to provide people with an excuse to
complain about what the “think are the problems.” I would reject
adding such a question to the list
Milton, you probably mean, you are against adding such a question :).
I dont see you have any authority to reject anything any more than I
have to reject your original formulation.
Was not the community accountability mechanism instituted just on the
basis of "what people think are the problems"? I saw no efforts to
gather facts with surveys like
"1. Are you aware of any instance in which anyone's business,
privacy, or ability to use or purchase DNS-related services, has been
affected by absence of a community accountability mechanism ?
If any such known 'facts' exist I am unaware of them and will like to
know.
In case of the question of ICANN's jurisdiction of incorporation
analytical facts are rather more evident, as raised in the civil
society statement.
The process we employ can lead towards certain kind of outcomes rather
than others. And I see this particular process being aimed at
foreclosing the jurisdiction of incorporation question. This is fact
the "application of public laws question" because immunity from such
application can be obtained even without changing ICANN's place of
jurisdiction.
Meaning ICANN can stay incorporated as US non profit in California,
and it exempted from application form various public laws as per the
US immunity act that I cited. I also said that, as far as I can
understand, it is possible to keep the private disputes arising from
ICANN's organisational system, including those about enforcement of
community powers, to be subject to US/ Californian law, strictly only
for such dispute resolution as per ICANN bylaws. We need to hear from
this group why this is not possible or not preferred...
parminder
*From:*ws2-jurisdiction-bounces@icann.org
[mailto:ws2-jurisdiction-bounces@icann.org <ws2-jurisdiction-bounces@icann.org>] *On Behalf Of *parminder
*Sent:* Wednesday, November 23, 2016 11:54 PM
*To:* ws2-jurisdiction@icann.org
*Subject:* Re: [Ws2-jurisdiction] first draft of fact solicitation
questions
I will like to add a general question to the below:
What do you think are the problems, if any, with continued
jurisdiction of the US state over ICANN, as a US non-profit? Please
justify your response with appropriate examples, analysis, etc.
Especially, if there are existing and past instances that highlight
such problems please indicate them.
parminder
On Wednesday 23 November 2016 09:50 PM, Mike Rodenbaugh wrote:
These seem well-stated, except perhaps they should not be looking
only for personal experience, but broaden the request to seek any
experience the responder is aware of? So I suggest something like:
1. Are you aware of any instance in which anyone's
business, privacy, or ability to use or purchase DNS-related
services, has been affected by ICANN's jurisdiction in any way?
If the answer is Yes, please describe specific cases or
incidents, including the date, the parties involved, and links to
any relevant documents.
2. Are you aware of any instance in which ICANN's
jurisdiction affected any dispute resolution process or
litigation related to domain names?
If the answer is Yes, please describe specific cases or
incidents, including the date, the parties involved, and links to
any relevant documents.
Mike Rodenbaugh
RODENBAUGH LAW
tel/fax: +1.415.738.8087
On Wed, Nov 23, 2016 at 6:47 AM, Mueller, Milton L
<milton@gatech.edu <mailto:milton@gatech.edu> <milton@gatech.edu>> wrote:
CW and I have agreed on the following draft:
*Request for stakeholder input on jurisdiction issues*
The Jurisdiction subgroup of the CCWG Accountability is
asking for the community to provide factual input on the
following questions:
1. Has your business, your privacy or your ability to
use or purchase DNS-related services, been affected by
ICANN's jurisdiction in any way?
If the answer is Yes, please describe specific cases or
incidents, including the date, the parties involved, and
links to any relevant documents.
2. Has ICANN's jurisdiction affected any dispute
resolution process or litigation related to domain names you
have been involved in?
If the answer is Yes, please describe specific cases or
incidents, including the date, the parties involved, and
links to any relevant documents.
Dr. Milton L. Mueller
Professor, School of Public Policy
Georgia Institute of Technology
_______________________________________________
Ws2-jurisdiction mailing list
Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> <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> <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
---
This email has been checked for viruses by Avast antivirus software.
https://www.avast.com/antivirus
_______________________________________________
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
To assist those who have misplaced the link to the Google Drive document we are supposed to be working on: The document is entitled "What is the influence of ICANN’s existing jurisdiction(s) relating to resolution of disputes (i.e., choice of law and venue) on the actual operation of ICANN’s policies and accountability mechanisms?" https://docs.google.com/document/d/1_uxN8A5J3iaofnGlr5gYoFVKudgg_ DuwDgIuyICPzbk/edit?usp=sharing We are also continuing to work on the "Multiple Layers of Jurisdiction" document (which hasn't been touched since October 30): https://docs.google.com/document/d/1oE9xDIAJhr4Nx7vNO_mWotSXuUtTgJMRs6U92yTg... On Mon, Nov 28, 2016 at 5:07 PM, Greg Shatan <gregshatanipc@gmail.com> wrote:
Pedro,
At no point has anyone ever suggested that we should "only make recommendations based on problems/issues identified in the past." That is a fallacy, and had no bearing on what type of solicitation we are going to make. Therefore, it's inappropriate to cite that mistaken idea as support for any proposition.
It has always been our plan to look at "perceived risks and threats" -- and also at perceived advantages and protections -- "that the current jurisdictional arrangement entails." That is what we have been doing. The lack of fact-based experiences coming from within the group led to the suggestion that we quickly solicit such experiences from outside the group. That's all that was intended in this exercise.
I do not see this question as being in any way "evidence based" merely because it asks for "evidence." In any event, what we are trying to achieve is an "*experience-based*" inquiry, not merely an "evidence based" inquiry. I also note that the question exhibits a high degree of bias -- it only asks about "problems" and "interference". An unbiased question would also ask about advantages and protections, and ways in which the current jurisdictional arrangement supports ICANN's ability to carry out its mission. i also find the focus on the concept of the "jurisdiction of the US state over ICANN," to be quite puzzling. The primary focus of this group has been on the effects of "governing law" (whether it results from a legal or physical location of ICANN or from a contractual provision, etc.) and not on some idea that the US Government is somehow poised to strike and exercise unilateral power over ICANN in some undefined (and possibly non-existent) fashion.
If some version of this question is asked at all (after resolving the serious issues in its construction), it should be asked of members of this group. Opinions and analysis are the heart of any working group's work. This work should not be "crowdsourced."
Meanwhile, I note that the Google Drive document we are actually supposed to be working on has not been touched since November 14 (other than some minor edits I made on November 21). That's two weeks in which our work could have advanced, but did not. As noted before, we need to refocus on our work in progress if we are going to make progress.
Greg
On Mon, Nov 28, 2016 at 4:07 PM, Pedro Ivo Ferraz da Silva < pedro.ivo@itamaraty.gov.br> wrote:
Dear subgroup colleagues,
I would like to support Parminder's rewritten question below. I believe it perfectly complies with the general requirement of a evidence based approach and it complements the two original questions since it introduces the element of future likelihood.
Our group should not only make recommendations based on problems/issues identified in the past, but also on perceived risks and threats that the current jurisdictional arrangement entails.
I also support Mike Rodenbaugh's suggestion to broaden the scope of the questions. I think we should welcome the input of any stakeholder that may have facts and genuine (well-founded) issues to present.
Finally, in order to eliminate the possibility of confusion, I would support dividing the document in two sessions: 1. Fact solicitation/ 2. Perceived risks
Regards,
Secretário Pedro Ivo Ferraz da Silva
Divisão da Sociedade da Informação (DI)
Ministério das Relações Exteriores - Brasil
T: + 55 61 2030-6609
Secretary Pedro Ivo Ferraz da Silva
Division of Information Society (DI)
Ministry of External Relations - Brazil
T: + 55 61 2030-6609
*De:* ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounc es@icann.org] *Em nome de *parminder *Enviada em:* domingo, 27 de novembro de 2016 04:34 *Para:* ws2-jurisdiction@icann.org *Assunto:* Re: [Ws2-jurisdiction] first draft of fact solicitation questions
On Saturday 26 November 2016 08:23 PM, avri doria wrote:
Hi,
I am among those who would like to see a question included along the
lines Parminder suggests. It should, however, be made by specific
reference to existing laws that could be used to interfere with ICANN's
ability to provide service to customers in other countries.
I think that Avri's proposal would be a good way to go about it, as long as we do not the circumscribe the inquiry too much. I would prefer a general question, plus a specific component, like
What do you think are the problems, if any, with continued jurisdiction of the US state over ICANN, as a US non-profit? Please justify your response with appropriate examples, analysis, etc. Especially, please indicate if there are existing and past instances that highlight such problems. Also, in terms of future likelihood, please mention specific institutions/ laws etc of the US state that could be used to interfere with ICANN's ability to provide global governance services to all people of the world, including in non US countries.
(Pl note that I have replaced the last part on services to customers in other countries to global gov services to all people.)
While I strongly support keeping the incorporation in CA in the US
because the yet to tested accountability process depends on that,
I am happy to support a separate exercise seeking expert opinion on whether accountability process does or does not pertain to private law which can choose its own jurisdiction of adjudication (as most private contracts can), irrespective of whether ICANN is subject to US public laws or not, as having immunity from them, whether on basis of an international law incorporation of US state granted immunity under the mentioned immunity laws of the US. In this manner, to ascertain whether ICANN's new accountability mechanism can or cannot still be adjudicated upon by Californian law/ courts, on the basis of making the necessary provision in ICANN's bylaws.
I also
support an effort to look for immunity from laws that affect ICANN
ability to serve clients internationally - be they governments,
companies or individuals. This immunity should be restricted to ICANN
performance of its mission in relation to international entities and
_not_ relate to contract law, labor law or local ordinances on garbage
pickup.
Of course, that is exactly what is sought. And that is possible in my view to do with immunity under the US immunity provisions.
I do not think that this immunity can be gained in the WS2 timeframe,
but I do believe that WS2 could initiate yet another CCWG effort to work
on that, if the consensus of the group were to do so.
The purpose of the WS2 is to make recommendations and for ICANN to begin action on that basis. That can be done in a few months, if agreed to.. It is not about necessarily completing the process within WS2 time frame. If WS2 does not give this rec, and passes it on to WS3, the same problem will arise; if we would not have begun working on it, immunity cannot be gained within any WS# time period as well, which then becomes an infinite process .....
Let us be very clear; if we are working on immunity from US under relevant current provisions of US law, we can only recommend, as the wish of the world community. It if of course for the US state to act on it or not. But I would find it extremely strange for us not to arrive at a rec which in our view if what preserves the global public interest best, and is quite possible/ practical to do, just because we begin second guessing whether US state will actually do it, and if so, in what time frame. That I do not think if the job of this group or of CCWG as a whole.
But first we need more of the background information, the so-called
facts. We have to remember that with NTIA oversight, the application of
some laws may have been different than it might be going forward. We
need to understand whether that is the case or not, and whether there
are laws that could now be applied to ICANN's activities that were not
applied before.
Yes I agree. This is a kind of investigation that is needed. Meanwhile, let me add, and I think this is what Avri is already alluding to, as now being not under a US gov contract/ oversight, ICANN in fact , in one way, may be more exposed to the full power of all laws and institutions of the US state than before. It is now just another private organisation.
parminder
avri
On 26-Nov-16 05:08, parminder wrote:
On Saturday 26 November 2016 01:55 PM, Mueller, Milton L wrote:
Sorry, Parminder, I see this as a request for opinions, not facts.
The whole point of this exercise is to gain specific factual cases
that show actual issues, not to provide people with an excuse to
complain about what the “think are the problems.” I would reject
adding such a question to the list
Milton, you probably mean, you are against adding such a question :).
I dont see you have any authority to reject anything any more than I
have to reject your original formulation.
Was not the community accountability mechanism instituted just on the
basis of "what people think are the problems"? I saw no efforts to
gather facts with surveys like
"1. Are you aware of any instance in which anyone's business,
privacy, or ability to use or purchase DNS-related services, has been
affected by absence of a community accountability mechanism ?
If any such known 'facts' exist I am unaware of them and will like to
know.
In case of the question of ICANN's jurisdiction of incorporation
analytical facts are rather more evident, as raised in the civil
society statement.
The process we employ can lead towards certain kind of outcomes rather
than others. And I see this particular process being aimed at
foreclosing the jurisdiction of incorporation question. This is fact
the "application of public laws question" because immunity from such
application can be obtained even without changing ICANN's place of
jurisdiction.
Meaning ICANN can stay incorporated as US non profit in California,
and it exempted from application form various public laws as per the
US immunity act that I cited. I also said that, as far as I can
understand, it is possible to keep the private disputes arising from
ICANN's organisational system, including those about enforcement of
community powers, to be subject to US/ Californian law, strictly only
for such dispute resolution as per ICANN bylaws. We need to hear from
this group why this is not possible or not preferred...
parminder
*From:*ws2-jurisdiction-bounces@icann.org
[mailto:ws2-jurisdiction-bounces@icann.org <ws2-jurisdiction-bounces@icann.org>] *On Behalf Of *parminder
*Sent:* Wednesday, November 23, 2016 11:54 PM
*To:* ws2-jurisdiction@icann.org
*Subject:* Re: [Ws2-jurisdiction] first draft of fact solicitation
questions
I will like to add a general question to the below:
What do you think are the problems, if any, with continued
jurisdiction of the US state over ICANN, as a US non-profit? Please
justify your response with appropriate examples, analysis, etc.
Especially, if there are existing and past instances that highlight
such problems please indicate them.
parminder
On Wednesday 23 November 2016 09:50 PM, Mike Rodenbaugh wrote:
These seem well-stated, except perhaps they should not be looking
only for personal experience, but broaden the request to seek any
experience the responder is aware of? So I suggest something like:
1. Are you aware of any instance in which anyone's
business, privacy, or ability to use or purchase DNS-related
services, has been affected by ICANN's jurisdiction in any way?
If the answer is Yes, please describe specific cases or
incidents, including the date, the parties involved, and links to
any relevant documents.
2. Are you aware of any instance in which ICANN's
jurisdiction affected any dispute resolution process or
litigation related to domain names?
If the answer is Yes, please describe specific cases or
incidents, including the date, the parties involved, and links to
any relevant documents.
Mike Rodenbaugh
RODENBAUGH LAW
tel/fax: +1.415.738.8087
On Wed, Nov 23, 2016 at 6:47 AM, Mueller, Milton L
<milton@gatech.edu <mailto:milton@gatech.edu> <milton@gatech.edu>> wrote:
CW and I have agreed on the following draft:
*Request for stakeholder input on jurisdiction issues*
The Jurisdiction subgroup of the CCWG Accountability is
asking for the community to provide factual input on the
following questions:
1. Has your business, your privacy or your ability to
use or purchase DNS-related services, been affected by
ICANN's jurisdiction in any way?
If the answer is Yes, please describe specific cases or
incidents, including the date, the parties involved, and
links to any relevant documents.
2. Has ICANN's jurisdiction affected any dispute
resolution process or litigation related to domain names you
have been involved in?
If the answer is Yes, please describe specific cases or
incidents, including the date, the parties involved, and
links to any relevant documents.
Dr. Milton L. Mueller
Professor, School of Public Policy
Georgia Institute of Technology
_______________________________________________
Ws2-jurisdiction mailing list
Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> <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> <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
---
This email has been checked for viruses by Avast antivirus software.
https://www.avast.com/antivirus
_______________________________________________
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
Bringing this thread back to its original purpose -- reviewing and revising the first draft of the experience-based questions. Having reviewed the comments in this thread which focused on the questions, I propose the following revisions. First, I've added "situations" along with "cases" and "incidents" to make it clear that we are looking for all types of experiences, not just disputes or adversarial situations (and certainly not only court cases, as one participant incorrectly surmised). Second, to avoid bias in the questions toward seeking out problems, I've added a short sentence noting that 'effects' can be positive or negative. Third, in response to suggestions that we also look for accounts of actual experiences beyond those responding, I've added a third question asking for reports of other experiences. Finally, I've added a footnote to clarify what is meant by "ICANN's jurisdiction," which is based on the "Multiple Layers of Jurisdiction" document. Please reply with any further comments you may have on these revised questions. Greg *1. Has your business, your privacy or your ability to use or purchase DNS-related services, been affected by ICANN's jurisdiction* in any way?* *If the answer is Yes, please describe specific cases, situations or incidents, including the date, the parties involved, and links to any relevant documents. Please note that “effects” may be positive or negative.* *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 “effects” may be positive or negative.* *3. Do you have copies of and/or links to any 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.* *_____________________________* ** For these questions, “ICANN’s jurisdiction” refers to (a) ICANN being subject to U.S. and California law as a result of its incorporation and location in California, (b) ICANN being subject to the laws of any other country as a result of its location or contacts with that country, or (c) any “choice of law” or venue provisions in agreements with ICANN. * On Mon, Nov 28, 2016 at 5:30 PM, Greg Shatan <gregshatanipc@gmail.com> wrote:
To assist those who have misplaced the link to the Google Drive document we are supposed to be working on:
The document is entitled "What is the influence of ICANN’s existing jurisdiction(s) relating to resolution of disputes (i.e., choice of law and venue) on the actual operation of ICANN’s policies and accountability mechanisms?"
https://docs.google.com/document/d/1_uxN8A5J3iaofnGlr5gYoFVK udgg_DuwDgIuyICPzbk/edit?usp=sharing
We are also continuing to work on the "Multiple Layers of Jurisdiction" document (which hasn't been touched since October 30): https://docs.google.com/document/d/1oE9xDIAJhr4Nx7vNO_ mWotSXuUtTgJMRs6U92yTgOH4/edit?usp=sharing
On Mon, Nov 28, 2016 at 5:07 PM, Greg Shatan <gregshatanipc@gmail.com> wrote:
Pedro,
At no point has anyone ever suggested that we should "only make recommendations based on problems/issues identified in the past." That is a fallacy, and had no bearing on what type of solicitation we are going to make. Therefore, it's inappropriate to cite that mistaken idea as support for any proposition.
It has always been our plan to look at "perceived risks and threats" -- and also at perceived advantages and protections -- "that the current jurisdictional arrangement entails." That is what we have been doing. The lack of fact-based experiences coming from within the group led to the suggestion that we quickly solicit such experiences from outside the group. That's all that was intended in this exercise.
I do not see this question as being in any way "evidence based" merely because it asks for "evidence." In any event, what we are trying to achieve is an "*experience-based*" inquiry, not merely an "evidence based" inquiry. I also note that the question exhibits a high degree of bias -- it only asks about "problems" and "interference". An unbiased question would also ask about advantages and protections, and ways in which the current jurisdictional arrangement supports ICANN's ability to carry out its mission. i also find the focus on the concept of the "jurisdiction of the US state over ICANN," to be quite puzzling. The primary focus of this group has been on the effects of "governing law" (whether it results from a legal or physical location of ICANN or from a contractual provision, etc.) and not on some idea that the US Government is somehow poised to strike and exercise unilateral power over ICANN in some undefined (and possibly non-existent) fashion.
If some version of this question is asked at all (after resolving the serious issues in its construction), it should be asked of members of this group. Opinions and analysis are the heart of any working group's work. This work should not be "crowdsourced."
Meanwhile, I note that the Google Drive document we are actually supposed to be working on has not been touched since November 14 (other than some minor edits I made on November 21). That's two weeks in which our work could have advanced, but did not. As noted before, we need to refocus on our work in progress if we are going to make progress.
Greg
On Mon, Nov 28, 2016 at 4:07 PM, Pedro Ivo Ferraz da Silva < pedro.ivo@itamaraty.gov.br> wrote:
Dear subgroup colleagues,
I would like to support Parminder's rewritten question below. I believe it perfectly complies with the general requirement of a evidence based approach and it complements the two original questions since it introduces the element of future likelihood.
Our group should not only make recommendations based on problems/issues identified in the past, but also on perceived risks and threats that the current jurisdictional arrangement entails.
I also support Mike Rodenbaugh's suggestion to broaden the scope of the questions. I think we should welcome the input of any stakeholder that may have facts and genuine (well-founded) issues to present.
Finally, in order to eliminate the possibility of confusion, I would support dividing the document in two sessions: 1. Fact solicitation/ 2. Perceived risks
Regards,
Secretário Pedro Ivo Ferraz da Silva
Divisão da Sociedade da Informação (DI)
Ministério das Relações Exteriores - Brasil
T: + 55 61 2030-6609
Secretary Pedro Ivo Ferraz da Silva
Division of Information Society (DI)
Ministry of External Relations - Brazil
T: + 55 61 2030-6609
*De:* ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounc es@icann.org] *Em nome de *parminder *Enviada em:* domingo, 27 de novembro de 2016 04:34 *Para:* ws2-jurisdiction@icann.org *Assunto:* Re: [Ws2-jurisdiction] first draft of fact solicitation questions
On Saturday 26 November 2016 08:23 PM, avri doria wrote:
Hi,
I am among those who would like to see a question included along the
lines Parminder suggests. It should, however, be made by specific
reference to existing laws that could be used to interfere with ICANN's
ability to provide service to customers in other countries.
I think that Avri's proposal would be a good way to go about it, as long as we do not the circumscribe the inquiry too much. I would prefer a general question, plus a specific component, like
What do you think are the problems, if any, with continued jurisdiction of the US state over ICANN, as a US non-profit? Please justify your response with appropriate examples, analysis, etc. Especially, please indicate if there are existing and past instances that highlight such problems. Also, in terms of future likelihood, please mention specific institutions/ laws etc of the US state that could be used to interfere with ICANN's ability to provide global governance services to all people of the world, including in non US countries.
(Pl note that I have replaced the last part on services to customers in other countries to global gov services to all people.)
While I strongly support keeping the incorporation in CA in the US
because the yet to tested accountability process depends on that,
I am happy to support a separate exercise seeking expert opinion on whether accountability process does or does not pertain to private law which can choose its own jurisdiction of adjudication (as most private contracts can), irrespective of whether ICANN is subject to US public laws or not, as having immunity from them, whether on basis of an international law incorporation of US state granted immunity under the mentioned immunity laws of the US. In this manner, to ascertain whether ICANN's new accountability mechanism can or cannot still be adjudicated upon by Californian law/ courts, on the basis of making the necessary provision in ICANN's bylaws.
I also
support an effort to look for immunity from laws that affect ICANN
ability to serve clients internationally - be they governments,
companies or individuals. This immunity should be restricted to ICANN
performance of its mission in relation to international entities and
_not_ relate to contract law, labor law or local ordinances on garbage
pickup.
Of course, that is exactly what is sought. And that is possible in my view to do with immunity under the US immunity provisions.
I do not think that this immunity can be gained in the WS2 timeframe,
but I do believe that WS2 could initiate yet another CCWG effort to work
on that, if the consensus of the group were to do so.
The purpose of the WS2 is to make recommendations and for ICANN to begin action on that basis. That can be done in a few months, if agreed to.. It is not about necessarily completing the process within WS2 time frame. If WS2 does not give this rec, and passes it on to WS3, the same problem will arise; if we would not have begun working on it, immunity cannot be gained within any WS# time period as well, which then becomes an infinite process .....
Let us be very clear; if we are working on immunity from US under relevant current provisions of US law, we can only recommend, as the wish of the world community. It if of course for the US state to act on it or not. But I would find it extremely strange for us not to arrive at a rec which in our view if what preserves the global public interest best, and is quite possible/ practical to do, just because we begin second guessing whether US state will actually do it, and if so, in what time frame. That I do not think if the job of this group or of CCWG as a whole.
But first we need more of the background information, the so-called
facts. We have to remember that with NTIA oversight, the application of
some laws may have been different than it might be going forward. We
need to understand whether that is the case or not, and whether there
are laws that could now be applied to ICANN's activities that were not
applied before.
Yes I agree. This is a kind of investigation that is needed. Meanwhile, let me add, and I think this is what Avri is already alluding to, as now being not under a US gov contract/ oversight, ICANN in fact , in one way, may be more exposed to the full power of all laws and institutions of the US state than before. It is now just another private organisation.
parminder
avri
On 26-Nov-16 05:08, parminder wrote:
On Saturday 26 November 2016 01:55 PM, Mueller, Milton L wrote:
Sorry, Parminder, I see this as a request for opinions, not facts.
The whole point of this exercise is to gain specific factual cases
that show actual issues, not to provide people with an excuse to
complain about what the “think are the problems.” I would reject
adding such a question to the list
Milton, you probably mean, you are against adding such a question :).
I dont see you have any authority to reject anything any more than I
have to reject your original formulation.
Was not the community accountability mechanism instituted just on the
basis of "what people think are the problems"? I saw no efforts to
gather facts with surveys like
"1. Are you aware of any instance in which anyone's business,
privacy, or ability to use or purchase DNS-related services, has been
affected by absence of a community accountability mechanism ?
If any such known 'facts' exist I am unaware of them and will like to
know.
In case of the question of ICANN's jurisdiction of incorporation
analytical facts are rather more evident, as raised in the civil
society statement.
The process we employ can lead towards certain kind of outcomes rather
than others. And I see this particular process being aimed at
foreclosing the jurisdiction of incorporation question. This is fact
the "application of public laws question" because immunity from such
application can be obtained even without changing ICANN's place of
jurisdiction.
Meaning ICANN can stay incorporated as US non profit in California,
and it exempted from application form various public laws as per the
US immunity act that I cited. I also said that, as far as I can
understand, it is possible to keep the private disputes arising from
ICANN's organisational system, including those about enforcement of
community powers, to be subject to US/ Californian law, strictly only
for such dispute resolution as per ICANN bylaws. We need to hear from
this group why this is not possible or not preferred...
parminder
*From:*ws2-jurisdiction-bounces@icann.org
[mailto:ws2-jurisdiction-bounces@icann.org <ws2-jurisdiction-bounces@icann.org>] *On Behalf Of *parminder
*Sent:* Wednesday, November 23, 2016 11:54 PM
*To:* ws2-jurisdiction@icann.org
*Subject:* Re: [Ws2-jurisdiction] first draft of fact solicitation
questions
I will like to add a general question to the below:
What do you think are the problems, if any, with continued
jurisdiction of the US state over ICANN, as a US non-profit? Please
justify your response with appropriate examples, analysis, etc.
Especially, if there are existing and past instances that highlight
such problems please indicate them.
parminder
On Wednesday 23 November 2016 09:50 PM, Mike Rodenbaugh wrote:
These seem well-stated, except perhaps they should not be looking
only for personal experience, but broaden the request to seek any
experience the responder is aware of? So I suggest something like:
1. Are you aware of any instance in which anyone's
business, privacy, or ability to use or purchase DNS-related
services, has been affected by ICANN's jurisdiction in any way?
If the answer is Yes, please describe specific cases or
incidents, including the date, the parties involved, and links to
any relevant documents.
2. Are you aware of any instance in which ICANN's
jurisdiction affected any dispute resolution process or
litigation related to domain names?
If the answer is Yes, please describe specific cases or
incidents, including the date, the parties involved, and links to
any relevant documents.
Mike Rodenbaugh
RODENBAUGH LAW
tel/fax: +1.415.738.8087
On Wed, Nov 23, 2016 at 6:47 AM, Mueller, Milton L
<milton@gatech.edu <mailto:milton@gatech.edu> <milton@gatech.edu>> wrote:
CW and I have agreed on the following draft:
*Request for stakeholder input on jurisdiction issues*
The Jurisdiction subgroup of the CCWG Accountability is
asking for the community to provide factual input on the
following questions:
1. Has your business, your privacy or your ability to
use or purchase DNS-related services, been affected by
ICANN's jurisdiction in any way?
If the answer is Yes, please describe specific cases or
incidents, including the date, the parties involved, and
links to any relevant documents.
2. Has ICANN's jurisdiction affected any dispute
resolution process or litigation related to domain names you
have been involved in?
If the answer is Yes, please describe specific cases or
incidents, including the date, the parties involved, and
links to any relevant documents.
Dr. Milton L. Mueller
Professor, School of Public Policy
Georgia Institute of Technology
_______________________________________________
Ws2-jurisdiction mailing list
Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> <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> <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
---
This email has been checked for viruses by Avast antivirus software.
https://www.avast.com/antivirus
_______________________________________________
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
Greg, We can discuss this more thoroughly in the upcoming subgroup call, but let me just briefly indicate that you are not taking into account the question proposal submitted by Parminder and that received the support of at least two other participants of this subgroup. I understand the wording of the question can be enhanced in order to incorporate comments made by some colleagues (including you), but by no means should it be left out, for the reasons I have indicated below. Thanks and regards, Secretário Pedro Ivo Ferraz da Silva Divisão da Sociedade da Informação (DI) Ministério das Relações Exteriores - Brasil T: + 55 61 2030-6609 Secretary Pedro Ivo Ferraz da Silva Division of Information Society (DI) Ministry of External Relations - Brazil T: + 55 61 2030-6609 De: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] Em nome de Greg Shatan Enviada em: segunda-feira, 28 de novembro de 2016 21:07 Para: ws2-jurisdiction@icann.org Assunto: Re: [Ws2-jurisdiction] RES: first draft of fact solicitation questions Bringing this thread back to its original purpose -- reviewing and revising the first draft of the experience-based questions. Having reviewed the comments in this thread which focused on the questions, I propose the following revisions. First, I've added "situations" along with "cases" and "incidents" to make it clear that we are looking for all types of experiences, not just disputes or adversarial situations (and certainly not only court cases, as one participant incorrectly surmised). Second, to avoid bias in the questions toward seeking out problems, I've added a short sentence noting that 'effects' can be positive or negative. Third, in response to suggestions that we also look for accounts of actual experiences beyond those responding, I've added a third question asking for reports of other experiences. Finally, I've added a footnote to clarify what is meant by "ICANN's jurisdiction," which is based on the "Multiple Layers of Jurisdiction" document. Please reply with any further comments you may have on these revised questions. Greg 1. Has your business, your privacy or your ability to use or purchase DNS-related services, been affected by ICANN's jurisdiction* in any way? If the answer is Yes, please describe specific cases, situations or incidents, including the date, the parties involved, and links to any relevant documents. Please note that “effects” may be positive or negative. 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 “effects” may be positive or negative. 3. Do you have copies of and/or links to any 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. _____________________________ * For these questions, “ICANN’s jurisdiction” refers to (a) ICANN being subject to U.S. and California law as a result of its incorporation and location in California, (b) ICANN being subject to the laws of any other country as a result of its location or contacts with that country, or (c) any “choice of law” or venue provisions in agreements with ICANN. On Mon, Nov 28, 2016 at 5:30 PM, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> wrote: To assist those who have misplaced the link to the Google Drive document we are supposed to be working on: The document is entitled "What is the influence of ICANN’s existing jurisdiction(s) relating to resolution of disputes (i.e., choice of law and venue) on the actual operation of ICANN’s policies and accountability mechanisms?" https://docs.google.com/document/d/1_uxN8A5J3iaofnGlr5gYoFVKudgg_DuwDgIuyICP... We are also continuing to work on the "Multiple Layers of Jurisdiction" document (which hasn't been touched since October 30): https://docs.google.com/document/d/1oE9xDIAJhr4Nx7vNO_mWotSXuUtTgJMRs6U92yTg... On Mon, Nov 28, 2016 at 5:07 PM, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> wrote: Pedro, At no point has anyone ever suggested that we should "only make recommendations based on problems/issues identified in the past." That is a fallacy, and had no bearing on what type of solicitation we are going to make. Therefore, it's inappropriate to cite that mistaken idea as support for any proposition. It has always been our plan to look at "perceived risks and threats" -- and also at perceived advantages and protections -- "that the current jurisdictional arrangement entails." That is what we have been doing. The lack of fact-based experiences coming from within the group led to the suggestion that we quickly solicit such experiences from outside the group. That's all that was intended in this exercise. I do not see this question as being in any way "evidence based" merely because it asks for "evidence." In any event, what we are trying to achieve is an "experience-based" inquiry, not merely an "evidence based" inquiry. I also note that the question exhibits a high degree of bias -- it only asks about "problems" and "interference". An unbiased question would also ask about advantages and protections, and ways in which the current jurisdictional arrangement supports ICANN's ability to carry out its mission. i also find the focus on the concept of the "jurisdiction of the US state over ICANN," to be quite puzzling. The primary focus of this group has been on the effects of "governing law" (whether it results from a legal or physical location of ICANN or from a contractual provision, etc.) and not on some idea that the US Government is somehow poised to strike and exercise unilateral power over ICANN in some undefined (and possibly non-existent) fashion. If some version of this question is asked at all (after resolving the serious issues in its construction), it should be asked of members of this group. Opinions and analysis are the heart of any working group's work. This work should not be "crowdsourced." Meanwhile, I note that the Google Drive document we are actually supposed to be working on has not been touched since November 14 (other than some minor edits I made on November 21). That's two weeks in which our work could have advanced, but did not. As noted before, we need to refocus on our work in progress if we are going to make progress. Greg On Mon, Nov 28, 2016 at 4:07 PM, Pedro Ivo Ferraz da Silva <pedro.ivo@itamaraty.gov.br<mailto:pedro.ivo@itamaraty.gov.br>> wrote: Dear subgroup colleagues, I would like to support Parminder's rewritten question below. I believe it perfectly complies with the general requirement of a evidence based approach and it complements the two original questions since it introduces the element of future likelihood. Our group should not only make recommendations based on problems/issues identified in the past, but also on perceived risks and threats that the current jurisdictional arrangement entails. I also support Mike Rodenbaugh's suggestion to broaden the scope of the questions. I think we should welcome the input of any stakeholder that may have facts and genuine (well-founded) issues to present. Finally, in order to eliminate the possibility of confusion, I would support dividing the document in two sessions: 1. Fact solicitation/ 2. Perceived risks Regards, Secretário Pedro Ivo Ferraz da Silva Divisão da Sociedade da Informação (DI) Ministério das Relações Exteriores - Brasil T: + 55 61 2030-6609<tel:%2B%2055%2061%202030-6609> Secretary Pedro Ivo Ferraz da Silva Division of Information Society (DI) Ministry of External Relations - Brazil T: + 55 61 2030-6609<tel:%2B%2055%2061%202030-6609> De: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org>] Em nome de parminder Enviada em: domingo, 27 de novembro de 2016 04:34 Para: ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org> Assunto: Re: [Ws2-jurisdiction] first draft of fact solicitation questions On Saturday 26 November 2016 08:23 PM, avri doria wrote: Hi, I am among those who would like to see a question included along the lines Parminder suggests. It should, however, be made by specific reference to existing laws that could be used to interfere with ICANN's ability to provide service to customers in other countries. I think that Avri's proposal would be a good way to go about it, as long as we do not the circumscribe the inquiry too much. I would prefer a general question, plus a specific component, like What do you think are the problems, if any, with continued jurisdiction of the US state over ICANN, as a US non-profit? Please justify your response with appropriate examples, analysis, etc. Especially, please indicate if there are existing and past instances that highlight such problems. Also, in terms of future likelihood, please mention specific institutions/ laws etc of the US state that could be used to interfere with ICANN's ability to provide global governance services to all people of the world, including in non US countries. (Pl note that I have replaced the last part on services to customers in other countries to global gov services to all people.) While I strongly support keeping the incorporation in CA in the US because the yet to tested accountability process depends on that, I am happy to support a separate exercise seeking expert opinion on whether accountability process does or does not pertain to private law which can choose its own jurisdiction of adjudication (as most private contracts can), irrespective of whether ICANN is subject to US public laws or not, as having immunity from them, whether on basis of an international law incorporation of US state granted immunity under the mentioned immunity laws of the US. In this manner, to ascertain whether ICANN's new accountability mechanism can or cannot still be adjudicated upon by Californian law/ courts, on the basis of making the necessary provision in ICANN's bylaws. I also support an effort to look for immunity from laws that affect ICANN ability to serve clients internationally - be they governments, companies or individuals. This immunity should be restricted to ICANN performance of its mission in relation to international entities and _not_ relate to contract law, labor law or local ordinances on garbage pickup. Of course, that is exactly what is sought. And that is possible in my view to do with immunity under the US immunity provisions. I do not think that this immunity can be gained in the WS2 timeframe, but I do believe that WS2 could initiate yet another CCWG effort to work on that, if the consensus of the group were to do so. The purpose of the WS2 is to make recommendations and for ICANN to begin action on that basis. That can be done in a few months, if agreed to.. It is not about necessarily completing the process within WS2 time frame. If WS2 does not give this rec, and passes it on to WS3, the same problem will arise; if we would not have begun working on it, immunity cannot be gained within any WS# time period as well, which then becomes an infinite process ..... Let us be very clear; if we are working on immunity from US under relevant current provisions of US law, we can only recommend, as the wish of the world community. It if of course for the US state to act on it or not. But I would find it extremely strange for us not to arrive at a rec which in our view if what preserves the global public interest best, and is quite possible/ practical to do, just because we begin second guessing whether US state will actually do it, and if so, in what time frame. That I do not think if the job of this group or of CCWG as a whole. But first we need more of the background information, the so-called facts. We have to remember that with NTIA oversight, the application of some laws may have been different than it might be going forward. We need to understand whether that is the case or not, and whether there are laws that could now be applied to ICANN's activities that were not applied before. Yes I agree. This is a kind of investigation that is needed. Meanwhile, let me add, and I think this is what Avri is already alluding to, as now being not under a US gov contract/ oversight, ICANN in fact , in one way, may be more exposed to the full power of all laws and institutions of the US state than before. It is now just another private organisation. parminder avri On 26-Nov-16 05:08, parminder wrote: On Saturday 26 November 2016 01:55 PM, Mueller, Milton L wrote: Sorry, Parminder, I see this as a request for opinions, not facts. The whole point of this exercise is to gain specific factual cases that show actual issues, not to provide people with an excuse to complain about what the “think are the problems.” I would reject adding such a question to the list Milton, you probably mean, you are against adding such a question :). I dont see you have any authority to reject anything any more than I have to reject your original formulation. Was not the community accountability mechanism instituted just on the basis of "what people think are the problems"? I saw no efforts to gather facts with surveys like "1. Are you aware of any instance in which anyone's business, privacy, or ability to use or purchase DNS-related services, has been affected by absence of a community accountability mechanism ? If any such known 'facts' exist I am unaware of them and will like to know. In case of the question of ICANN's jurisdiction of incorporation analytical facts are rather more evident, as raised in the civil society statement. The process we employ can lead towards certain kind of outcomes rather than others. And I see this particular process being aimed at foreclosing the jurisdiction of incorporation question. This is fact the "application of public laws question" because immunity from such application can be obtained even without changing ICANN's place of jurisdiction. Meaning ICANN can stay incorporated as US non profit in California, and it exempted from application form various public laws as per the US immunity act that I cited. I also said that, as far as I can understand, it is possible to keep the private disputes arising from ICANN's organisational system, including those about enforcement of community powers, to be subject to US/ Californian law, strictly only for such dispute resolution as per ICANN bylaws. We need to hear from this group why this is not possible or not preferred... parminder *From:*ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] *On Behalf Of *parminder *Sent:* Wednesday, November 23, 2016 11:54 PM *To:* ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org> *Subject:* Re: [Ws2-jurisdiction] first draft of fact solicitation questions I will like to add a general question to the below: What do you think are the problems, if any, with continued jurisdiction of the US state over ICANN, as a US non-profit? Please justify your response with appropriate examples, analysis, etc. Especially, if there are existing and past instances that highlight such problems please indicate them. parminder On Wednesday 23 November 2016 09:50 PM, Mike Rodenbaugh wrote: These seem well-stated, except perhaps they should not be looking only for personal experience, but broaden the request to seek any experience the responder is aware of? So I suggest something like: 1. Are you aware of any instance in which anyone's business, privacy, or ability to use or purchase DNS-related services, has been affected by ICANN's jurisdiction in any way? If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents. 2. Are you aware of any instance in which ICANN's jurisdiction affected any dispute resolution process or litigation related to domain names? If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents. Mike Rodenbaugh RODENBAUGH LAW tel/fax: +1.415.738.8087<tel:%2B1.415.738.8087> http://rodenbaugh.com On Wed, Nov 23, 2016 at 6:47 AM, Mueller, Milton L <milton@gatech.edu<mailto:milton@gatech.edu> <mailto:milton@gatech.edu><mailto:milton@gatech.edu>> wrote: CW and I have agreed on the following draft: *Request for stakeholder input on jurisdiction issues* The Jurisdiction subgroup of the CCWG Accountability is asking for the community to provide factual input on the following questions: 1. Has your business, your privacy or your ability to use or purchase DNS-related services, been affected by ICANN's jurisdiction in any way? If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents. 2. Has ICANN's jurisdiction affected any dispute resolution process or litigation related to domain names you have been involved in? If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents. Dr. Milton L. Mueller Professor, School of Public Policy Georgia Institute of Technology _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> <mailto: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> <mailto: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 --- This email has been checked for viruses by Avast antivirus software. https://www.avast.com/antivirus _______________________________________________ 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
These modifications look great to me. I would support moving ahead with them --MM From: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Greg Shatan Sent: Monday, November 28, 2016 6:07 PM To: ws2-jurisdiction@icann.org Subject: Re: [Ws2-jurisdiction] RES: first draft of fact solicitation questions Bringing this thread back to its original purpose -- reviewing and revising the first draft of the experience-based questions. Having reviewed the comments in this thread which focused on the questions, I propose the following revisions. First, I've added "situations" along with "cases" and "incidents" to make it clear that we are looking for all types of experiences, not just disputes or adversarial situations (and certainly not only court cases, as one participant incorrectly surmised). Second, to avoid bias in the questions toward seeking out problems, I've added a short sentence noting that 'effects' can be positive or negative. Third, in response to suggestions that we also look for accounts of actual experiences beyond those responding, I've added a third question asking for reports of other experiences. Finally, I've added a footnote to clarify what is meant by "ICANN's jurisdiction," which is based on the "Multiple Layers of Jurisdiction" document. Please reply with any further comments you may have on these revised questions. Greg 1. Has your business, your privacy or your ability to use or purchase DNS-related services, been affected by ICANN's jurisdiction* in any way? If the answer is Yes, please describe specific cases, situations or incidents, including the date, the parties involved, and links to any relevant documents. Please note that “effects” may be positive or negative. 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 “effects” may be positive or negative. 3. Do you have copies of and/or links to any 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. _____________________________ * For these questions, “ICANN’s jurisdiction” refers to (a) ICANN being subject to U.S. and California law as a result of its incorporation and location in California, (b) ICANN being subject to the laws of any other country as a result of its location or contacts with that country, or (c) any “choice of law” or venue provisions in agreements with ICANN. On Mon, Nov 28, 2016 at 5:30 PM, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> wrote: To assist those who have misplaced the link to the Google Drive document we are supposed to be working on: The document is entitled "What is the influence of ICANN’s existing jurisdiction(s) relating to resolution of disputes (i.e., choice of law and venue) on the actual operation of ICANN’s policies and accountability mechanisms?" https://docs.google.com/document/d/1_uxN8A5J3iaofnGlr5gYoFVKudgg_DuwDgIuyICP... We are also continuing to work on the "Multiple Layers of Jurisdiction" document (which hasn't been touched since October 30): https://docs.google.com/document/d/1oE9xDIAJhr4Nx7vNO_mWotSXuUtTgJMRs6U92yTg... On Mon, Nov 28, 2016 at 5:07 PM, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> wrote: Pedro, At no point has anyone ever suggested that we should "only make recommendations based on problems/issues identified in the past." That is a fallacy, and had no bearing on what type of solicitation we are going to make. Therefore, it's inappropriate to cite that mistaken idea as support for any proposition. It has always been our plan to look at "perceived risks and threats" -- and also at perceived advantages and protections -- "that the current jurisdictional arrangement entails." That is what we have been doing. The lack of fact-based experiences coming from within the group led to the suggestion that we quickly solicit such experiences from outside the group. That's all that was intended in this exercise. I do not see this question as being in any way "evidence based" merely because it asks for "evidence." In any event, what we are trying to achieve is an "experience-based" inquiry, not merely an "evidence based" inquiry. I also note that the question exhibits a high degree of bias -- it only asks about "problems" and "interference". An unbiased question would also ask about advantages and protections, and ways in which the current jurisdictional arrangement supports ICANN's ability to carry out its mission. i also find the focus on the concept of the "jurisdiction of the US state over ICANN," to be quite puzzling. The primary focus of this group has been on the effects of "governing law" (whether it results from a legal or physical location of ICANN or from a contractual provision, etc.) and not on some idea that the US Government is somehow poised to strike and exercise unilateral power over ICANN in some undefined (and possibly non-existent) fashion. If some version of this question is asked at all (after resolving the serious issues in its construction), it should be asked of members of this group. Opinions and analysis are the heart of any working group's work. This work should not be "crowdsourced." Meanwhile, I note that the Google Drive document we are actually supposed to be working on has not been touched since November 14 (other than some minor edits I made on November 21). That's two weeks in which our work could have advanced, but did not. As noted before, we need to refocus on our work in progress if we are going to make progress. Greg On Mon, Nov 28, 2016 at 4:07 PM, Pedro Ivo Ferraz da Silva <pedro.ivo@itamaraty.gov.br<mailto:pedro.ivo@itamaraty.gov.br>> wrote: Dear subgroup colleagues, I would like to support Parminder's rewritten question below. I believe it perfectly complies with the general requirement of a evidence based approach and it complements the two original questions since it introduces the element of future likelihood. Our group should not only make recommendations based on problems/issues identified in the past, but also on perceived risks and threats that the current jurisdictional arrangement entails. I also support Mike Rodenbaugh's suggestion to broaden the scope of the questions. I think we should welcome the input of any stakeholder that may have facts and genuine (well-founded) issues to present. Finally, in order to eliminate the possibility of confusion, I would support dividing the document in two sessions: 1. Fact solicitation/ 2. Perceived risks Regards, Secretário Pedro Ivo Ferraz da Silva Divisão da Sociedade da Informação (DI) Ministério das Relações Exteriores - Brasil T: + 55 61 2030-6609<tel:%2B%2055%2061%202030-6609> Secretary Pedro Ivo Ferraz da Silva Division of Information Society (DI) Ministry of External Relations - Brazil T: + 55 61 2030-6609<tel:%2B%2055%2061%202030-6609> De: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org>] Em nome de parminder Enviada em: domingo, 27 de novembro de 2016 04:34 Para: ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org> Assunto: Re: [Ws2-jurisdiction] first draft of fact solicitation questions On Saturday 26 November 2016 08:23 PM, avri doria wrote: Hi, I am among those who would like to see a question included along the lines Parminder suggests. It should, however, be made by specific reference to existing laws that could be used to interfere with ICANN's ability to provide service to customers in other countries. I think that Avri's proposal would be a good way to go about it, as long as we do not the circumscribe the inquiry too much. I would prefer a general question, plus a specific component, like What do you think are the problems, if any, with continued jurisdiction of the US state over ICANN, as a US non-profit? Please justify your response with appropriate examples, analysis, etc. Especially, please indicate if there are existing and past instances that highlight such problems. Also, in terms of future likelihood, please mention specific institutions/ laws etc of the US state that could be used to interfere with ICANN's ability to provide global governance services to all people of the world, including in non US countries. (Pl note that I have replaced the last part on services to customers in other countries to global gov services to all people.) While I strongly support keeping the incorporation in CA in the US because the yet to tested accountability process depends on that, I am happy to support a separate exercise seeking expert opinion on whether accountability process does or does not pertain to private law which can choose its own jurisdiction of adjudication (as most private contracts can), irrespective of whether ICANN is subject to US public laws or not, as having immunity from them, whether on basis of an international law incorporation of US state granted immunity under the mentioned immunity laws of the US. In this manner, to ascertain whether ICANN's new accountability mechanism can or cannot still be adjudicated upon by Californian law/ courts, on the basis of making the necessary provision in ICANN's bylaws. I also support an effort to look for immunity from laws that affect ICANN ability to serve clients internationally - be they governments, companies or individuals. This immunity should be restricted to ICANN performance of its mission in relation to international entities and _not_ relate to contract law, labor law or local ordinances on garbage pickup. Of course, that is exactly what is sought. And that is possible in my view to do with immunity under the US immunity provisions. I do not think that this immunity can be gained in the WS2 timeframe, but I do believe that WS2 could initiate yet another CCWG effort to work on that, if the consensus of the group were to do so. The purpose of the WS2 is to make recommendations and for ICANN to begin action on that basis. That can be done in a few months, if agreed to.. It is not about necessarily completing the process within WS2 time frame. If WS2 does not give this rec, and passes it on to WS3, the same problem will arise; if we would not have begun working on it, immunity cannot be gained within any WS# time period as well, which then becomes an infinite process ..... Let us be very clear; if we are working on immunity from US under relevant current provisions of US law, we can only recommend, as the wish of the world community. It if of course for the US state to act on it or not. But I would find it extremely strange for us not to arrive at a rec which in our view if what preserves the global public interest best, and is quite possible/ practical to do, just because we begin second guessing whether US state will actually do it, and if so, in what time frame. That I do not think if the job of this group or of CCWG as a whole. But first we need more of the background information, the so-called facts. We have to remember that with NTIA oversight, the application of some laws may have been different than it might be going forward. We need to understand whether that is the case or not, and whether there are laws that could now be applied to ICANN's activities that were not applied before. Yes I agree. This is a kind of investigation that is needed. Meanwhile, let me add, and I think this is what Avri is already alluding to, as now being not under a US gov contract/ oversight, ICANN in fact , in one way, may be more exposed to the full power of all laws and institutions of the US state than before. It is now just another private organisation. parminder avri On 26-Nov-16 05:08, parminder wrote: On Saturday 26 November 2016 01:55 PM, Mueller, Milton L wrote: Sorry, Parminder, I see this as a request for opinions, not facts. The whole point of this exercise is to gain specific factual cases that show actual issues, not to provide people with an excuse to complain about what the “think are the problems.” I would reject adding such a question to the list Milton, you probably mean, you are against adding such a question :). I dont see you have any authority to reject anything any more than I have to reject your original formulation. Was not the community accountability mechanism instituted just on the basis of "what people think are the problems"? I saw no efforts to gather facts with surveys like "1. Are you aware of any instance in which anyone's business, privacy, or ability to use or purchase DNS-related services, has been affected by absence of a community accountability mechanism ? If any such known 'facts' exist I am unaware of them and will like to know. In case of the question of ICANN's jurisdiction of incorporation analytical facts are rather more evident, as raised in the civil society statement. The process we employ can lead towards certain kind of outcomes rather than others. And I see this particular process being aimed at foreclosing the jurisdiction of incorporation question. This is fact the "application of public laws question" because immunity from such application can be obtained even without changing ICANN's place of jurisdiction. Meaning ICANN can stay incorporated as US non profit in California, and it exempted from application form various public laws as per the US immunity act that I cited. I also said that, as far as I can understand, it is possible to keep the private disputes arising from ICANN's organisational system, including those about enforcement of community powers, to be subject to US/ Californian law, strictly only for such dispute resolution as per ICANN bylaws. We need to hear from this group why this is not possible or not preferred... parminder *From:*ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] *On Behalf Of *parminder *Sent:* Wednesday, November 23, 2016 11:54 PM *To:* ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org> *Subject:* Re: [Ws2-jurisdiction] first draft of fact solicitation questions I will like to add a general question to the below: What do you think are the problems, if any, with continued jurisdiction of the US state over ICANN, as a US non-profit? Please justify your response with appropriate examples, analysis, etc. Especially, if there are existing and past instances that highlight such problems please indicate them. parminder On Wednesday 23 November 2016 09:50 PM, Mike Rodenbaugh wrote: These seem well-stated, except perhaps they should not be looking only for personal experience, but broaden the request to seek any experience the responder is aware of? So I suggest something like: 1. Are you aware of any instance in which anyone's business, privacy, or ability to use or purchase DNS-related services, has been affected by ICANN's jurisdiction in any way? If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents. 2. Are you aware of any instance in which ICANN's jurisdiction affected any dispute resolution process or litigation related to domain names? If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents. Mike Rodenbaugh RODENBAUGH LAW tel/fax: +1.415.738.8087<tel:%2B1.415.738.8087> http://rodenbaugh.com On Wed, Nov 23, 2016 at 6:47 AM, Mueller, Milton L <milton@gatech.edu<mailto:milton@gatech.edu> <mailto:milton@gatech.edu><mailto:milton@gatech.edu>> wrote: CW and I have agreed on the following draft: *Request for stakeholder input on jurisdiction issues* The Jurisdiction subgroup of the CCWG Accountability is asking for the community to provide factual input on the following questions: 1. Has your business, your privacy or your ability to use or purchase DNS-related services, been affected by ICANN's jurisdiction in any way? If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents. 2. Has ICANN's jurisdiction affected any dispute resolution process or litigation related to domain names you have been involved in? If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents. Dr. Milton L. Mueller Professor, School of Public Policy Georgia Institute of Technology _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> <mailto: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> <mailto: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 --- This email has been checked for viruses by Avast antivirus software. https://www.avast.com/antivirus _______________________________________________ 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
Dear Greg: I have not been able to follow the whole of this discussion in recent days. However, I find that this outcome is acceptable from my point of view. In the footnote, I would suggest the following amendment: (b) … as a result of its location or contacts within that country. CW On 30 Nov 2016, at 17:00, "Mueller, Milton L" <milton@gatech.edu> wrote:
These modifications look great to me. I would support moving ahead with them --MM
From: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Greg Shatan Sent: Monday, November 28, 2016 6:07 PM To: ws2-jurisdiction@icann.org Subject: Re: [Ws2-jurisdiction] RES: first draft of fact solicitation questions
Bringing this thread back to its original purpose -- reviewing and revising the first draft of the experience-based questions.
Having reviewed the comments in this thread which focused on the questions, I propose the following revisions. First, I've added "situations" along with "cases" and "incidents" to make it clear that we are looking for all types of experiences, not just disputes or adversarial situations (and certainly not only court cases, as one participant incorrectly surmised). Second, to avoid bias in the questions toward seeking out problems, I've added a short sentence noting that 'effects' can be positive or negative. Third, in response to suggestions that we also look for accounts of actual experiences beyond those responding, I've added a third question asking for reports of other experiences. Finally, I've added a footnote to clarify what is meant by "ICANN's jurisdiction," which is based on the "Multiple Layers of Jurisdiction" document. Please reply with any further comments you may have on these revised questions.
Greg
1. Has your business, your privacy or your ability to use or purchase DNS-related services, been affected by ICANN's jurisdiction* in any way?
If the answer is Yes, please describe specific cases, situations or incidents, including the date, the parties involved, and links to any relevant documents. Please note that “effects” may be positive or negative.
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 “effects” may be positive or negative.
3. Do you have copies of and/or links to any 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.
_____________________________
* For these questions, “ICANN’s jurisdiction” refers to (a) ICANN being subject to U.S. and California law as a result of its incorporation and location in California, (b) ICANN being subject to the laws of any other country as a result of its location or contacts with that country, or (c) any “choice of law” or venue provisions in agreements with ICANN.
On Mon, Nov 28, 2016 at 5:30 PM, Greg Shatan <gregshatanipc@gmail.com> wrote: To assist those who have misplaced the link to the Google Drive document we are supposed to be working on:
The document is entitled "What is the influence of ICANN’s existing jurisdiction(s) relating to resolution of disputes (i.e., choice of law and venue) on the actual operation of ICANN’s policies and accountability mechanisms?"
https://docs.google.com/document/d/1_uxN8A5J3iaofnGlr5gYoFVKudgg_DuwDgIuyICP...
We are also continuing to work on the "Multiple Layers of Jurisdiction" document (which hasn't been touched since October 30): https://docs.google.com/document/d/1oE9xDIAJhr4Nx7vNO_mWotSXuUtTgJMRs6U92yTg...
On Mon, Nov 28, 2016 at 5:07 PM, Greg Shatan <gregshatanipc@gmail.com> wrote: Pedro,
At no point has anyone ever suggested that we should "only make recommendations based on problems/issues identified in the past." That is a fallacy, and had no bearing on what type of solicitation we are going to make. Therefore, it's inappropriate to cite that mistaken idea as support for any proposition.
It has always been our plan to look at "perceived risks and threats" -- and also at perceived advantages and protections -- "that the current jurisdictional arrangement entails." That is what we have been doing. The lack of fact-based experiences coming from within the group led to the suggestion that we quickly solicit such experiences from outside the group. That's all that was intended in this exercise.
I do not see this question as being in any way "evidence based" merely because it asks for "evidence." In any event, what we are trying to achieve is an "experience-based" inquiry, not merely an "evidence based" inquiry. I also note that the question exhibits a high degree of bias -- it only asks about "problems" and "interference". An unbiased question would also ask about advantages and protections, and ways in which the current jurisdictional arrangement supports ICANN's ability to carry out its mission. i also find the focus on the concept of the "jurisdiction of the US state over ICANN," to be quite puzzling. The primary focus of this group has been on the effects of "governing law" (whether it results from a legal or physical location of ICANN or from a contractual provision, etc.) and not on some idea that the US Government is somehow poised to strike and exercise unilateral power over ICANN in some undefined (and possibly non-existent) fashion.
If some version of this question is asked at all (after resolving the serious issues in its construction), it should be asked of members of this group. Opinions and analysis are the heart of any working group's work. This work should not be "crowdsourced."
Meanwhile, I note that the Google Drive document we are actually supposed to be working on has not been touched since November 14 (other than some minor edits I made on November 21). That's two weeks in which our work could have advanced, but did not. As noted before, we need to refocus on our work in progress if we are going to make progress.
Greg
On Mon, Nov 28, 2016 at 4:07 PM, Pedro Ivo Ferraz da Silva <pedro.ivo@itamaraty.gov.br> wrote: Dear subgroup colleagues,
I would like to support Parminder's rewritten question below. I believe it perfectly complies with the general requirement of a evidence based approach and it complements the two original questions since it introduces the element of future likelihood. Our group should not only make recommendations based on problems/issues identified in the past, but also on perceived risks and threats that the current jurisdictional arrangement entails.
I also support Mike Rodenbaugh's suggestion to broaden the scope of the questions. I think we should welcome the input of any stakeholder that may have facts and genuine (well-founded) issues to present.
Finally, in order to eliminate the possibility of confusion, I would support dividing the document in two sessions: 1. Fact solicitation/ 2. Perceived risks
Regards,
Secretário Pedro Ivo Ferraz da Silva Divisão da Sociedade da Informação (DI) Ministério das Relações Exteriores - Brasil T: + 55 61 2030-6609
Secretary Pedro Ivo Ferraz da Silva Division of Information Society (DI) Ministry of External Relations - Brazil T: + 55 61 2030-6609
De: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] Em nome de parminder Enviada em: domingo, 27 de novembro de 2016 04:34 Para: ws2-jurisdiction@icann.org Assunto: Re: [Ws2-jurisdiction] first draft of fact solicitation questions
On Saturday 26 November 2016 08:23 PM, avri doria wrote: Hi,
I am among those who would like to see a question included along the lines Parminder suggests. It should, however, be made by specific reference to existing laws that could be used to interfere with ICANN's ability to provide service to customers in other countries.
I think that Avri's proposal would be a good way to go about it, as long as we do not the circumscribe the inquiry too much. I would prefer a general question, plus a specific component, like
What do you think are the problems, if any, with continued jurisdiction of the US state over ICANN, as a US non-profit? Please justify your response with appropriate examples, analysis, etc. Especially, please indicate if there are existing and past instances that highlight such problems. Also, in terms of future likelihood, please mention specific institutions/ laws etc of the US state that could be used to interfere with ICANN's ability to provide global governance services to all people of the world, including in non US countries.
(Pl note that I have replaced the last part on services to customers in other countries to global gov services to all people.)
While I strongly support keeping the incorporation in CA in the US because the yet to tested accountability process depends on that,
I am happy to support a separate exercise seeking expert opinion on whether accountability process does or does not pertain to private law which can choose its own jurisdiction of adjudication (as most private contracts can), irrespective of whether ICANN is subject to US public laws or not, as having immunity from them, whether on basis of an international law incorporation of US state granted immunity under the mentioned immunity laws of the US. In this manner, to ascertain whether ICANN's new accountability mechanism can or cannot still be adjudicated upon by Californian law/ courts, on the basis of making the necessary provision in ICANN's bylaws.
I also support an effort to look for immunity from laws that affect ICANN ability to serve clients internationally - be they governments, companies or individuals. This immunity should be restricted to ICANN performance of its mission in relation to international entities and _not_ relate to contract law, labor law or local ordinances on garbage pickup.
Of course, that is exactly what is sought. And that is possible in my view to do with immunity under the US immunity provisions.
I do not think that this immunity can be gained in the WS2 timeframe, but I do believe that WS2 could initiate yet another CCWG effort to work on that, if the consensus of the group were to do so. The purpose of the WS2 is to make recommendations and for ICANN to begin action on that basis. That can be done in a few months, if agreed to.. It is not about necessarily completing the process within WS2 time frame. If WS2 does not give this rec, and passes it on to WS3, the same problem will arise; if we would not have begun working on it, immunity cannot be gained within any WS# time period as well, which then becomes an infinite process .....
Let us be very clear; if we are working on immunity from US under relevant current provisions of US law, we can only recommend, as the wish of the world community. It if of course for the US state to act on it or not. But I would find it extremely strange for us not to arrive at a rec which in our view if what preserves the global public interest best, and is quite possible/ practical to do, just because we begin second guessing whether US state will actually do it, and if so, in what time frame. That I do not think if the job of this group or of CCWG as a whole.
But first we need more of the background information, the so-called facts. We have to remember that with NTIA oversight, the application of some laws may have been different than it might be going forward. We need to understand whether that is the case or not, and whether there are laws that could now be applied to ICANN's activities that were not applied before.
Yes I agree. This is a kind of investigation that is needed. Meanwhile, let me add, and I think this is what Avri is already alluding to, as now being not under a US gov contract/ oversight, ICANN in fact , in one way, may be more exposed to the full power of all laws and institutions of the US state than before. It is now just another private organisation.
parminder
avri
On 26-Nov-16 05:08, parminder wrote:
On Saturday 26 November 2016 01:55 PM, Mueller, Milton L wrote:
Sorry, Parminder, I see this as a request for opinions, not facts. The whole point of this exercise is to gain specific factual cases that show actual issues, not to provide people with an excuse to complain about what the “think are the problems.” I would reject adding such a question to the list
Milton, you probably mean, you are against adding such a question :). I dont see you have any authority to reject anything any more than I have to reject your original formulation.
Was not the community accountability mechanism instituted just on the basis of "what people think are the problems"? I saw no efforts to gather facts with surveys like
"1. Are you aware of any instance in which anyone's business, privacy, or ability to use or purchase DNS-related services, has been affected by absence of a community accountability mechanism ?
If any such known 'facts' exist I am unaware of them and will like to know.
In case of the question of ICANN's jurisdiction of incorporation analytical facts are rather more evident, as raised in the civil society statement.
The process we employ can lead towards certain kind of outcomes rather than others. And I see this particular process being aimed at foreclosing the jurisdiction of incorporation question. This is fact the "application of public laws question" because immunity from such application can be obtained even without changing ICANN's place of jurisdiction.
Meaning ICANN can stay incorporated as US non profit in California, and it exempted from application form various public laws as per the US immunity act that I cited. I also said that, as far as I can understand, it is possible to keep the private disputes arising from ICANN's organisational system, including those about enforcement of community powers, to be subject to US/ Californian law, strictly only for such dispute resolution as per ICANN bylaws. We need to hear from this group why this is not possible or not preferred...
parminder
*From:*ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] *On Behalf Of *parminder *Sent:* Wednesday, November 23, 2016 11:54 PM *To:* ws2-jurisdiction@icann.org *Subject:* Re: [Ws2-jurisdiction] first draft of fact solicitation questions
I will like to add a general question to the below:
What do you think are the problems, if any, with continued jurisdiction of the US state over ICANN, as a US non-profit? Please justify your response with appropriate examples, analysis, etc. Especially, if there are existing and past instances that highlight such problems please indicate them.
parminder
On Wednesday 23 November 2016 09:50 PM, Mike Rodenbaugh wrote:
These seem well-stated, except perhaps they should not be looking only for personal experience, but broaden the request to seek any experience the responder is aware of? So I suggest something like:
1. Are you aware of any instance in which anyone's business, privacy, or ability to use or purchase DNS-related services, has been affected by ICANN's jurisdiction in any way?
If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents.
2. Are you aware of any instance in which ICANN's jurisdiction affected any dispute resolution process or litigation related to domain names?
If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents.
Mike Rodenbaugh
RODENBAUGH LAW
tel/fax: +1.415.738.8087
On Wed, Nov 23, 2016 at 6:47 AM, Mueller, Milton L <milton@gatech.edu <mailto:milton@gatech.edu>> wrote:
CW and I have agreed on the following draft:
*Request for stakeholder input on jurisdiction issues*
The Jurisdiction subgroup of the CCWG Accountability is asking for the community to provide factual input on the following questions:
1. Has your business, your privacy or your ability to use or purchase DNS-related services, been affected by ICANN's jurisdiction in any way?
If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents.
2. Has ICANN's jurisdiction affected any dispute resolution process or litigation related to domain names you have been involved in?
If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents.
Dr. Milton L. Mueller
Professor, School of Public Policy
Georgia Institute of Technology
_______________________________________________ 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
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
--- This email has been checked for viruses by Avast antivirus software. https://www.avast.com/antivirus
_______________________________________________ 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
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
Chris, Thanks. Probably the most accurate formulation would be: *(b) … as a result of its location within or contacts with that country.* (The latter making reference to the concept of "minimum contacts" with a place as a basis for choice of law and jurisdiction.) Greg On Wed, Nov 30, 2016 at 11:23 AM, CW Mail <mail@christopherwilkinson.eu> wrote:
Dear Greg:
I have not been able to follow the whole of this discussion in recent days. However, I find that this outcome is acceptable from my point of view.
In the footnote, I would suggest the following amendment:
*(b) … as a result of its location or contacts within that country.*
CW
On 30 Nov 2016, at 17:00, "Mueller, Milton L" <milton@gatech.edu> wrote:
These modifications look great to me. I would support moving ahead with them --MM
*From:* ws2-jurisdiction-bounces@icann.org [mailto:ws2- jurisdiction-bounces@icann.org] *On Behalf Of *Greg Shatan *Sent:* Monday, November 28, 2016 6:07 PM *To:* ws2-jurisdiction@icann.org *Subject:* Re: [Ws2-jurisdiction] RES: first draft of fact solicitation questions
Bringing this thread back to its original purpose -- reviewing and revising the first draft of the experience-based questions.
Having reviewed the comments in this thread which focused on the questions, I propose the following revisions. First, I've added "situations" along with "cases" and "incidents" to make it clear that we are looking for all types of experiences, not just disputes or adversarial situations (and certainly not only court cases, as one participant incorrectly surmised). Second, to avoid bias in the questions toward seeking out problems, I've added a short sentence noting that 'effects' can be positive or negative. Third, in response to suggestions that we also look for accounts of actual experiences beyond those responding, I've added a third question asking for reports of other experiences. Finally, I've added a footnote to clarify what is meant by "ICANN's jurisdiction," which is based on the "Multiple Layers of Jurisdiction" document. Please reply with any further comments you may have on these revised questions.
Greg
*1. Has your business, your privacy or your ability to use or purchase DNS-related services, been affected by ICANN's jurisdiction* in any way?*
*If the answer is Yes, please describe specific cases, situations or incidents, including the date, the parties involved, and links to any relevant documents. Please note that “effects” may be positive or negative.*
*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 “effects” may be positive or negative.*
*3. Do you have copies of and/or links to any 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.*
*_____________________________*
** For these questions, “ICANN’s jurisdiction” refers to (a) ICANN being subject to U.S. and California law as a result of its incorporation and location in California, (b) ICANN being subject to the laws of any other country as a result of its location or contacts with that country, or (c) any “choice of law” or venue provisions in agreements with ICANN. *
On Mon, Nov 28, 2016 at 5:30 PM, Greg Shatan <gregshatanipc@gmail.com> wrote:
To assist those who have misplaced the link to the Google Drive document we are supposed to be working on:
The document is entitled "What is the influence of ICANN’s existing jurisdiction(s) relating to resolution of disputes (i.e., choice of law and venue) on the actual operation of ICANN’s policies and accountability mechanisms?"
https://docs.google.com/document/d/1_uxN8A5J3iaofnGlr5gYoFVKudgg_ DuwDgIuyICPzbk/edit?usp=sharing
We are also continuing to work on the "Multiple Layers of Jurisdiction" document (which hasn't been touched since October 30): https://docs.google.com/document/d/1oE9xDIAJhr4Nx7vNO_ mWotSXuUtTgJMRs6U92yTgOH4/edit?usp=sharing
On Mon, Nov 28, 2016 at 5:07 PM, Greg Shatan <gregshatanipc@gmail.com> wrote:
Pedro,
At no point has anyone ever suggested that we should "only make recommendations based on problems/issues identified in the past." That is a fallacy, and had no bearing on what type of solicitation we are going to make. Therefore, it's inappropriate to cite that mistaken idea as support for any proposition.
It has always been our plan to look at "perceived risks and threats" -- and also at perceived advantages and protections -- "that the current jurisdictional arrangement entails." That is what we have been doing. The lack of fact-based experiences coming from within the group led to the suggestion that we quickly solicit such experiences from outside the group. That's all that was intended in this exercise.
I do not see this question as being in any way "evidence based" merely because it asks for "evidence." In any event, what we are trying to achieve is an "*experience-based*" inquiry, not merely an "evidence based" inquiry. I also note that the question exhibits a high degree of bias -- it only asks about "problems" and "interference". An unbiased question would also ask about advantages and protections, and ways in which the current jurisdictional arrangement supports ICANN's ability to carry out its mission. i also find the focus on the concept of the "jurisdiction of the US state over ICANN," to be quite puzzling. The primary focus of this group has been on the effects of "governing law" (whether it results from a legal or physical location of ICANN or from a contractual provision, etc.) and not on some idea that the US Government is somehow poised to strike and exercise unilateral power over ICANN in some undefined (and possibly non-existent) fashion.
If some version of this question is asked at all (after resolving the serious issues in its construction), it should be asked of members of this group. Opinions and analysis are the heart of any working group's work. This work should not be "crowdsourced."
Meanwhile, I note that the Google Drive document we are actually supposed to be working on has not been touched since November 14 (other than some minor edits I made on November 21). That's two weeks in which our work could have advanced, but did not. As noted before, we need to refocus on our work in progress if we are going to make progress.
Greg
On Mon, Nov 28, 2016 at 4:07 PM, Pedro Ivo Ferraz da Silva < pedro.ivo@itamaraty.gov.br> wrote:
Dear subgroup colleagues,
I would like to support Parminder's rewritten question below. I believe it perfectly complies with the general requirement of a evidence based approach and it complements the two original questions since it introduces the element of future likelihood. Our group should not only make recommendations based on problems/issues identified in the past, but also on perceived risks and threats that the current jurisdictional arrangement entails.
I also support Mike Rodenbaugh's suggestion to broaden the scope of the questions. I think we should welcome the input of any stakeholder that may have facts and genuine (well-founded) issues to present.
Finally, in order to eliminate the possibility of confusion, I would support dividing the document in two sessions: 1. Fact solicitation/ 2. Perceived risks
Regards,
Secretário Pedro Ivo Ferraz da Silva Divisão da Sociedade da Informação (DI) Ministério das Relações Exteriores - Brasil T: + 55 61 2030-6609
Secretary Pedro Ivo Ferraz da Silva Division of Information Society (DI) Ministry of External Relations - Brazil T: + 55 61 2030-6609
*De:* ws2-jurisdiction-bounces@icann.org [mailto:ws2- jurisdiction-bounces@icann.org] *Em nome de *parminder *Enviada em:* domingo, 27 de novembro de 2016 04:34 *Para:* ws2-jurisdiction@icann.org *Assunto:* Re: [Ws2-jurisdiction] first draft of fact solicitation questions
On Saturday 26 November 2016 08:23 PM, avri doria wrote:
Hi,
I am among those who would like to see a question included along the
lines Parminder suggests. It should, however, be made by specific
reference to existing laws that could be used to interfere with ICANN's
ability to provide service to customers in other countries.
I think that Avri's proposal would be a good way to go about it, as long as we do not the circumscribe the inquiry too much. I would prefer a general question, plus a specific component, like
What do you think are the problems, if any, with continued jurisdiction of the US state over ICANN, as a US non-profit? Please justify your response with appropriate examples, analysis, etc. Especially, please indicate if there are existing and past instances that highlight such problems. Also, in terms of future likelihood, please mention specific institutions/ laws etc of the US state that could be used to interfere with ICANN's ability to provide global governance services to all people of the world, including in non US countries.
(Pl note that I have replaced the last part on services to customers in other countries to global gov services to all people.)
While I strongly support keeping the incorporation in CA in the US
because the yet to tested accountability process depends on that,
I am happy to support a separate exercise seeking expert opinion on whether accountability process does or does not pertain to private law which can choose its own jurisdiction of adjudication (as most private contracts can), irrespective of whether ICANN is subject to US public laws or not, as having immunity from them, whether on basis of an international law incorporation of US state granted immunity under the mentioned immunity laws of the US. In this manner, to ascertain whether ICANN's new accountability mechanism can or cannot still be adjudicated upon by Californian law/ courts, on the basis of making the necessary provision in ICANN's bylaws.
I also
support an effort to look for immunity from laws that affect ICANN
ability to serve clients internationally - be they governments,
companies or individuals. This immunity should be restricted to ICANN
performance of its mission in relation to international entities and
_not_ relate to contract law, labor law or local ordinances on garbage
pickup.
Of course, that is exactly what is sought. And that is possible in my view to do with immunity under the US immunity provisions.
I do not think that this immunity can be gained in the WS2 timeframe,
but I do believe that WS2 could initiate yet another CCWG effort to work
on that, if the consensus of the group were to do so.
The purpose of the WS2 is to make recommendations and for ICANN to begin action on that basis. That can be done in a few months, if agreed to.. It is not about necessarily completing the process within WS2 time frame. If WS2 does not give this rec, and passes it on to WS3, the same problem will arise; if we would not have begun working on it, immunity cannot be gained within any WS# time period as well, which then becomes an infinite process .....
Let us be very clear; if we are working on immunity from US under relevant current provisions of US law, we can only recommend, as the wish of the world community. It if of course for the US state to act on it or not. But I would find it extremely strange for us not to arrive at a rec which in our view if what preserves the global public interest best, and is quite possible/ practical to do, just because we begin second guessing whether US state will actually do it, and if so, in what time frame. That I do not think if the job of this group or of CCWG as a whole.
But first we need more of the background information, the so-called
facts. We have to remember that with NTIA oversight, the application of
some laws may have been different than it might be going forward. We
need to understand whether that is the case or not, and whether there
are laws that could now be applied to ICANN's activities that were not
applied before.
Yes I agree. This is a kind of investigation that is needed. Meanwhile, let me add, and I think this is what Avri is already alluding to, as now being not under a US gov contract/ oversight, ICANN in fact , in one way, may be more exposed to the full power of all laws and institutions of the US state than before. It is now just another private organisation.
parminder
avri
On 26-Nov-16 05:08, parminder wrote:
On Saturday 26 November 2016 01:55 PM, Mueller, Milton L wrote:
Sorry, Parminder, I see this as a request for opinions, not facts.
The whole point of this exercise is to gain specific factual cases
that show actual issues, not to provide people with an excuse to
complain about what the “think are the problems.” I would reject
adding such a question to the list
Milton, you probably mean, you are against adding such a question :).
I dont see you have any authority to reject anything any more than I
have to reject your original formulation.
Was not the community accountability mechanism instituted just on the
basis of "what people think are the problems"? I saw no efforts to
gather facts with surveys like
"1. Are you aware of any instance in which anyone's business,
privacy, or ability to use or purchase DNS-related services, has been
affected by absence of a community accountability mechanism ?
If any such known 'facts' exist I am unaware of them and will like to
know.
In case of the question of ICANN's jurisdiction of incorporation
analytical facts are rather more evident, as raised in the civil
society statement.
The process we employ can lead towards certain kind of outcomes rather
than others. And I see this particular process being aimed at
foreclosing the jurisdiction of incorporation question. This is fact
the "application of public laws question" because immunity from such
application can be obtained even without changing ICANN's place of
jurisdiction.
Meaning ICANN can stay incorporated as US non profit in California,
and it exempted from application form various public laws as per the
US immunity act that I cited. I also said that, as far as I can
understand, it is possible to keep the private disputes arising from
ICANN's organisational system, including those about enforcement of
community powers, to be subject to US/ Californian law, strictly only
for such dispute resolution as per ICANN bylaws. We need to hear from
this group why this is not possible or not preferred...
parminder
*From:*ws2-jurisdiction-bounces@icann.org
[mailto:ws2-jurisdiction-bounces@icann.org <ws2-jurisdiction-bounces@icann.org>] *On Behalf Of *parminder
*Sent:* Wednesday, November 23, 2016 11:54 PM
*To:* ws2-jurisdiction@icann.org
*Subject:* Re: [Ws2-jurisdiction] first draft of fact solicitation
questions
I will like to add a general question to the below:
What do you think are the problems, if any, with continued
jurisdiction of the US state over ICANN, as a US non-profit? Please
justify your response with appropriate examples, analysis, etc.
Especially, if there are existing and past instances that highlight
such problems please indicate them.
parminder
On Wednesday 23 November 2016 09:50 PM, Mike Rodenbaugh wrote:
These seem well-stated, except perhaps they should not be looking
only for personal experience, but broaden the request to seek any
experience the responder is aware of? So I suggest something like:
1. Are you aware of any instance in which anyone's
business, privacy, or ability to use or purchase DNS-related
services, has been affected by ICANN's jurisdiction in any way?
If the answer is Yes, please describe specific cases or
incidents, including the date, the parties involved, and links to
any relevant documents.
2. Are you aware of any instance in which ICANN's
jurisdiction affected any dispute resolution process or
litigation related to domain names?
If the answer is Yes, please describe specific cases or
incidents, including the date, the parties involved, and links to
any relevant documents.
Mike Rodenbaugh
RODENBAUGH LAW
tel/fax: +1.415.738.8087
On Wed, Nov 23, 2016 at 6:47 AM, Mueller, Milton L
<milton@gatech.edu <mailto:milton@gatech.edu> <milton@gatech.edu>> wrote:
CW and I have agreed on the following draft:
*Request for stakeholder input on jurisdiction issues*
The Jurisdiction subgroup of the CCWG Accountability is
asking for the community to provide factual input on the
following questions:
1. Has your business, your privacy or your ability to
use or purchase DNS-related services, been affected by
ICANN's jurisdiction in any way?
If the answer is Yes, please describe specific cases or
incidents, including the date, the parties involved, and
links to any relevant documents.
2. Has ICANN's jurisdiction affected any dispute
resolution process or litigation related to domain names you
have been involved in?
If the answer is Yes, please describe specific cases or
incidents, including the date, the parties involved, and
links to any relevant documents.
Dr. Milton L. Mueller
Professor, School of Public Policy
Georgia Institute of Technology
_______________________________________________
Ws2-jurisdiction mailing list
Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> <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> <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
---
This email has been checked for viruses by Avast antivirus software.
https://www.avast.com/antivirus
_______________________________________________
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
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
Hi, This comes close. I would also like to see it ask for specific references to laws where avaialble. avri On 28-Nov-16 16:07, Pedro Ivo Ferraz da Silva wrote:
What do you think are the problems, if any, with continued jurisdiction of the US state over ICANN, as a US non-profit? Please justify your response with appropriate examples, analysis, etc.
... with appropriate examples, references to specific laws, case and other studies, analysis, ...
Especially, please indicate if there are existing and past instances that highlight such problems. Also, in terms of future likelihood, please mention specific institutions/ laws etc of the US state
I think ti might be good to couch this in terms of risk analysis. Risk is real and analyzing it is a common activity. Also in terms of likely risk, please ...
that could be used to interfere with ICANN's ability to provide global governance services to all people of the world, including in non US countries.
thanks avri --- This email has been checked for viruses by Avast antivirus software. https://www.avast.com/antivirus
Dear All, I fully support issues raised by Parminder,Pedro and Avri to a) expand questions, to ask the potential difficulties that US jurisdiction continue to apply and adding a need for additional jurisdiction as well as to properly address the currently ICANN immunity to Public Law as exempted by US Immunity Acts More over any such questions to outside need to be approved by CCWG Regards Kavouss Sent from my iPhone
On 28 Nov 2016, at 22:07, Pedro Ivo Ferraz da Silva <pedro.ivo@itamaraty.gov.br> wrote:
Dear subgroup colleagues,
I would like to support Parminder's rewritten question below. I believe it perfectly complies with the general requirement of a evidence based approach and it complements the two original questions since it introduces the element of future likelihood. Our group should not only make recommendations based on problems/issues identified in the past, but also on perceived risks and threats that the current jurisdictional arrangement entails.
I also support Mike Rodenbaugh's suggestion to broaden the scope of the questions. I think we should welcome the input of any stakeholder that may have facts and genuine (well-founded) issues to present.
Finally, in order to eliminate the possibility of confusion, I would support dividing the document in two sessions: 1. Fact solicitation/ 2. Perceived risks
Regards,
Secretário Pedro Ivo Ferraz da Silva Divisão da Sociedade da Informação (DI) Ministério das Relações Exteriores - Brasil T: + 55 61 2030-6609
Secretary Pedro Ivo Ferraz da Silva Division of Information Society (DI) Ministry of External Relations - Brazil T: + 55 61 2030-6609
De: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] Em nome de parminder Enviada em: domingo, 27 de novembro de 2016 04:34 Para: ws2-jurisdiction@icann.org Assunto: Re: [Ws2-jurisdiction] first draft of fact solicitation questions
On Saturday 26 November 2016 08:23 PM, avri doria wrote: Hi,
I am among those who would like to see a question included along the lines Parminder suggests. It should, however, be made by specific reference to existing laws that could be used to interfere with ICANN's ability to provide service to customers in other countries.
I think that Avri's proposal would be a good way to go about it, as long as we do not the circumscribe the inquiry too much. I would prefer a general question, plus a specific component, like
What do you think are the problems, if any, with continued jurisdiction of the US state over ICANN, as a US non-profit? Please justify your response with appropriate examples, analysis, etc. Especially, please indicate if there are existing and past instances that highlight such problems. Also, in terms of future likelihood, please mention specific institutions/ laws etc of the US state that could be used to interfere with ICANN's ability to provide global governance services to all people of the world, including in non US countries.
(Pl note that I have replaced the last part on services to customers in other countries to global gov services to all people.)
While I strongly support keeping the incorporation in CA in the US because the yet to tested accountability process depends on that,
I am happy to support a separate exercise seeking expert opinion on whether accountability process does or does not pertain to private law which can choose its own jurisdiction of adjudication (as most private contracts can), irrespective of whether ICANN is subject to US public laws or not, as having immunity from them, whether on basis of an international law incorporation of US state granted immunity under the mentioned immunity laws of the US. In this manner, to ascertain whether ICANN's new accountability mechanism can or cannot still be adjudicated upon by Californian law/ courts, on the basis of making the necessary provision in ICANN's bylaws.
I also support an effort to look for immunity from laws that affect ICANN ability to serve clients internationally - be they governments, companies or individuals. This immunity should be restricted to ICANN performance of its mission in relation to international entities and _not_ relate to contract law, labor law or local ordinances on garbage pickup.
Of course, that is exactly what is sought. And that is possible in my view to do with immunity under the US immunity provisions.
I do not think that this immunity can be gained in the WS2 timeframe, but I do believe that WS2 could initiate yet another CCWG effort to work on that, if the consensus of the group were to do so. The purpose of the WS2 is to make recommendations and for ICANN to begin action on that basis. That can be done in a few months, if agreed to.. It is not about necessarily completing the process within WS2 time frame. If WS2 does not give this rec, and passes it on to WS3, the same problem will arise; if we would not have begun working on it, immunity cannot be gained within any WS# time period as well, which then becomes an infinite process .....
Let us be very clear; if we are working on immunity from US under relevant current provisions of US law, we can only recommend, as the wish of the world community. It if of course for the US state to act on it or not. But I would find it extremely strange for us not to arrive at a rec which in our view if what preserves the global public interest best, and is quite possible/ practical to do, just because we begin second guessing whether US state will actually do it, and if so, in what time frame. That I do not think if the job of this group or of CCWG as a whole.
But first we need more of the background information, the so-called facts. We have to remember that with NTIA oversight, the application of some laws may have been different than it might be going forward. We need to understand whether that is the case or not, and whether there are laws that could now be applied to ICANN's activities that were not applied before.
Yes I agree. This is a kind of investigation that is needed. Meanwhile, let me add, and I think this is what Avri is already alluding to, as now being not under a US gov contract/ oversight, ICANN in fact , in one way, may be more exposed to the full power of all laws and institutions of the US state than before. It is now just another private organisation.
parminder
avri
On 26-Nov-16 05:08, parminder wrote:
On Saturday 26 November 2016 01:55 PM, Mueller, Milton L wrote:
Sorry, Parminder, I see this as a request for opinions, not facts. The whole point of this exercise is to gain specific factual cases that show actual issues, not to provide people with an excuse to complain about what the “think are the problems.” I would reject adding such a question to the list
Milton, you probably mean, you are against adding such a question :). I dont see you have any authority to reject anything any more than I have to reject your original formulation.
Was not the community accountability mechanism instituted just on the basis of "what people think are the problems"? I saw no efforts to gather facts with surveys like
"1. Are you aware of any instance in which anyone's business, privacy, or ability to use or purchase DNS-related services, has been affected by absence of a community accountability mechanism ?
If any such known 'facts' exist I am unaware of them and will like to know.
In case of the question of ICANN's jurisdiction of incorporation analytical facts are rather more evident, as raised in the civil society statement.
The process we employ can lead towards certain kind of outcomes rather than others. And I see this particular process being aimed at foreclosing the jurisdiction of incorporation question. This is fact the "application of public laws question" because immunity from such application can be obtained even without changing ICANN's place of jurisdiction.
Meaning ICANN can stay incorporated as US non profit in California, and it exempted from application form various public laws as per the US immunity act that I cited. I also said that, as far as I can understand, it is possible to keep the private disputes arising from ICANN's organisational system, including those about enforcement of community powers, to be subject to US/ Californian law, strictly only for such dispute resolution as per ICANN bylaws. We need to hear from this group why this is not possible or not preferred...
parminder
*From:*ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] *On Behalf Of *parminder *Sent:* Wednesday, November 23, 2016 11:54 PM *To:* ws2-jurisdiction@icann.org *Subject:* Re: [Ws2-jurisdiction] first draft of fact solicitation questions
I will like to add a general question to the below:
What do you think are the problems, if any, with continued jurisdiction of the US state over ICANN, as a US non-profit? Please justify your response with appropriate examples, analysis, etc. Especially, if there are existing and past instances that highlight such problems please indicate them.
parminder
On Wednesday 23 November 2016 09:50 PM, Mike Rodenbaugh wrote:
These seem well-stated, except perhaps they should not be looking only for personal experience, but broaden the request to seek any experience the responder is aware of? So I suggest something like:
1. Are you aware of any instance in which anyone's business, privacy, or ability to use or purchase DNS-related services, has been affected by ICANN's jurisdiction in any way?
If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents.
2. Are you aware of any instance in which ICANN's jurisdiction affected any dispute resolution process or litigation related to domain names?
If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents.
Mike Rodenbaugh
RODENBAUGH LAW
tel/fax: +1.415.738.8087
On Wed, Nov 23, 2016 at 6:47 AM, Mueller, Milton L <milton@gatech.edu <mailto:milton@gatech.edu>> wrote:
CW and I have agreed on the following draft:
*Request for stakeholder input on jurisdiction issues*
The Jurisdiction subgroup of the CCWG Accountability is asking for the community to provide factual input on the following questions:
1. Has your business, your privacy or your ability to use or purchase DNS-related services, been affected by ICANN's jurisdiction in any way?
If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents.
2. Has ICANN's jurisdiction affected any dispute resolution process or litigation related to domain names you have been involved in?
If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents.
Dr. Milton L. Mueller
Professor, School of Public Policy
Georgia Institute of Technology
_______________________________________________ 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
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
--- This email has been checked for viruses by Avast antivirus software. https://www.avast.com/antivirus
_______________________________________________ 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 You seem to think ICANN has some form of statutory immunity. It doesn't. It's not subject to ius publicum simply because it is not a state actor. (Public law being understood to be the branch of law that governs relationships with state actors). Post-transition it no longer even has the residual formalism of the contract with the Government for IANA. Nigel PS: For the sake of avoiding argument about wider meaning of 'public law', ICANN, of course, remains subject to the full panoply of state and Federal criminal law .. but that applies to everyone, all the time, anyway. On 30/11/16 15:18, Arasteh wrote:
Dear All, I fully support issues raised by Parminder,Pedro and Avri to a) expand questions, to ask the potential difficulties that US jurisdiction continue to apply and adding a need for additional jurisdiction as well as to properly address the currently ICANN immunity to Public Law as exempted by US Immunity Acts More over any such questions to outside need to be approved by CCWG Regards Kavouss
Sent from my iPhone
On 28 Nov 2016, at 22:07, Pedro Ivo Ferraz da Silva <pedro.ivo@itamaraty.gov.br <mailto:pedro.ivo@itamaraty.gov.br>> wrote:
Dear subgroup colleagues,
I would like to support Parminder's rewritten question below. I believe it perfectly complies with the general requirement of a evidence based approach and it complements the two original questions since it introduces the element of future likelihood.
Our group should not only make recommendations based on problems/issues identified in the past, but also on perceived risks and threats that the current jurisdictional arrangement entails.
I also support Mike Rodenbaugh's suggestion to broaden the scope of the questions. I think we should welcome the input of any stakeholder that may have facts and genuine (well-founded) issues to present.
Finally, in order to eliminate the possibility of confusion, I would support dividing the document in two sessions: 1. Fact solicitation/ 2. Perceived risks
Regards,
Secretário Pedro Ivo Ferraz da Silva
Divisão da Sociedade da Informação (DI)
Ministério das Relações Exteriores - Brasil
T: + 55 61 2030-6609
Secretary Pedro Ivo Ferraz da Silva
Division of Information Society (DI)
Ministry of External Relations - Brazil
T: + 55 61 2030-6609
*De:*ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] *Em nome de *parminder *Enviada em:* domingo, 27 de novembro de 2016 04:34 *Para:* ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> *Assunto:* Re: [Ws2-jurisdiction] first draft of fact solicitation questions
On Saturday 26 November 2016 08:23 PM, avri doria wrote:
Hi,
I am among those who would like to see a question included along the
lines Parminder suggests. It should, however, be made by specific
reference to existing laws that could be used to interfere with ICANN's
ability to provide service to customers in other countries.
I think that Avri's proposal would be a good way to go about it, as long as we do not the circumscribe the inquiry too much. I would prefer a general question, plus a specific component, like
What do you think are the problems, if any, with continued jurisdiction of the US state over ICANN, as a US non-profit? Please justify your response with appropriate examples, analysis, etc. Especially, please indicate if there are existing and past instances that highlight such problems. Also, in terms of future likelihood, please mention specific institutions/ laws etc of the US state that could be used to interfere with ICANN's ability to provide global governance services to all people of the world, including in non US countries.
(Pl note that I have replaced the last part on services to customers in other countries to global gov services to all people.)
While I strongly support keeping the incorporation in CA in the US because the yet to tested accountability process depends on that,
I am happy to support a separate exercise seeking expert opinion on whether accountability process does or does not pertain to private law which can choose its own jurisdiction of adjudication (as most private contracts can), irrespective of whether ICANN is subject to US public laws or not, as having immunity from them, whether on basis of an international law incorporation of US state granted immunity under the mentioned immunity laws of the US. In this manner, to ascertain whether ICANN's new accountability mechanism can or cannot still be adjudicated upon by Californian law/ courts, on the basis of making the necessary provision in ICANN's bylaws.
I also support an effort to look for immunity from laws that affect ICANN ability to serve clients internationally - be they governments, companies or individuals. This immunity should be restricted to ICANN performance of its mission in relation to international entities and _not_ relate to contract law, labor law or local ordinances on garbage pickup.
Of course, that is exactly what is sought. And that is possible in my view to do with immunity under the US immunity provisions.
I do not think that this immunity can be gained in the WS2 timeframe, but I do believe that WS2 could initiate yet another CCWG effort to work on that, if the consensus of the group were to do so.
The purpose of the WS2 is to make recommendations and for ICANN to begin action on that basis. That can be done in a few months, if agreed to.. It is not about necessarily completing the process within WS2 time frame. If WS2 does not give this rec, and passes it on to WS3, the same problem will arise; if we would not have begun working on it, immunity cannot be gained within any WS# time period as well, which then becomes an infinite process .....
Let us be very clear; if we are working on immunity from US under relevant current provisions of US law, we can only recommend, as the wish of the world community. It if of course for the US state to act on it or not. But I would find it extremely strange for us not to arrive at a rec which in our view if what preserves the global public interest best, and is quite possible/ practical to do, just because we begin second guessing whether US state will actually do it, and if so, in what time frame. That I do not think if the job of this group or of CCWG as a whole.
But first we need more of the background information, the so-called facts. We have to remember that with NTIA oversight, the application of some laws may have been different than it might be going forward. We need to understand whether that is the case or not, and whether there are laws that could now be applied to ICANN's activities that were not applied before.
Yes I agree. This is a kind of investigation that is needed. Meanwhile, let me add, and I think this is what Avri is already alluding to, as now being not under a US gov contract/ oversight, ICANN in fact , in one way, may be more exposed to the full power of all laws and institutions of the US state than before. It is now just another private organisation.
parminder
avri
On 26-Nov-16 05:08, parminder wrote:
On Saturday 26 November 2016 01:55 PM, Mueller, Milton L wrote:
Sorry, Parminder, I see this as a request for opinions, not facts.
The whole point of this exercise is to gain specific factual cases
that show actual issues, not to provide people with an excuse to
complain about what the “think are the problems.” I would reject
adding such a question to the list
Milton, you probably mean, you are against adding such a question :).
I dont see you have any authority to reject anything any more than I
have to reject your original formulation.
Was not the community accountability mechanism instituted just on the
basis of "what people think are the problems"? I saw no efforts to
gather facts with surveys like
"1. Are you aware of any instance in which anyone's business,
privacy, or ability to use or purchase DNS-related services, has been
affected by absence of a community accountability mechanism ?
If any such known 'facts' exist I am unaware of them and will like to
know.
In case of the question of ICANN's jurisdiction of incorporation
analytical facts are rather more evident, as raised in the civil
society statement.
The process we employ can lead towards certain kind of outcomes rather
than others. And I see this particular process being aimed at
foreclosing the jurisdiction of incorporation question. This is fact
the "application of public laws question" because immunity from such
application can be obtained even without changing ICANN's place of
jurisdiction.
Meaning ICANN can stay incorporated as US non profit in California,
and it exempted from application form various public laws as per the
US immunity act that I cited. I also said that, as far as I can
understand, it is possible to keep the private disputes arising from
ICANN's organisational system, including those about enforcement of
community powers, to be subject to US/ Californian law, strictly only
for such dispute resolution as per ICANN bylaws. We need to hear from
this group why this is not possible or not preferred...
parminder
*From:*ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org>
[mailto:ws2-jurisdiction-bounces@icann.org] *On Behalf Of *parminder
*Sent:* Wednesday, November 23, 2016 11:54 PM
*To:* ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org>
*Subject:* Re: [Ws2-jurisdiction] first draft of fact solicitation
questions
I will like to add a general question to the below:
What do you think are the problems, if any, with continued
jurisdiction of the US state over ICANN, as a US non-profit? Please
justify your response with appropriate examples, analysis, etc.
Especially, if there are existing and past instances that highlight
such problems please indicate them.
parminder
On Wednesday 23 November 2016 09:50 PM, Mike Rodenbaugh wrote:
These seem well-stated, except perhaps they should not be looking
only for personal experience, but broaden the request to seek any
experience the responder is aware of? So I suggest something like:
1. Are you aware of any instance in which anyone's
business, privacy, or ability to use or purchase DNS-related
services, has been affected by ICANN's jurisdiction in any way?
If the answer is Yes, please describe specific cases or
incidents, including the date, the parties involved, and links to
any relevant documents.
2. Are you aware of any instance in which ICANN's
jurisdiction affected any dispute resolution process or
litigation related to domain names?
If the answer is Yes, please describe specific cases or
incidents, including the date, the parties involved, and links to
any relevant documents.
Mike Rodenbaugh
RODENBAUGH LAW
tel/fax: +1.415.738.8087
On Wed, Nov 23, 2016 at 6:47 AM, Mueller, Milton L
<milton@gatech.edu <mailto:milton@gatech.edu> <mailto:milton@gatech.edu> <mailto:milton@gatech.edu>> wrote:
CW and I have agreed on the following draft:
*Request for stakeholder input on jurisdiction issues*
The Jurisdiction subgroup of the CCWG Accountability is
asking for the community to provide factual input on the
following questions:
1. Has your business, your privacy or your ability to
use or purchase DNS-related services, been affected by
ICANN's jurisdiction in any way?
If the answer is Yes, please describe specific cases or
incidents, including the date, the parties involved, and
links to any relevant documents.
2. Has ICANN's jurisdiction affected any dispute
resolution process or litigation related to domain names you
have been involved in?
If the answer is Yes, please describe specific cases or
incidents, including the date, the parties involved, and
links to any relevant documents.
Dr. Milton L. Mueller
Professor, School of Public Policy
Georgia Institute of Technology
_______________________________________________
Ws2-jurisdiction mailing list
Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> <mailto: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> <mailto: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
--- This email has been checked for viruses by Avast antivirus software. https://www.avast.com/antivirus
_______________________________________________ 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
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
On Wednesday 30 November 2016 09:08 PM, Nigel Roberts wrote:
Kavouss
You seem to think ICANN has some form of statutory immunity.
It doesn't.
Nigel, I dont think anyone is under any such illusion. Perhaps quite the opposite, our problem is that ICANN does not have statutory immunity.
It's not subject to ius publicum simply because it is not a state actor. (Public law being understood to be the branch of law that governs relationships with state actors). Post-transition it no longer even has the residual formalism of the contract with the Government for IANA.
We have been over this before. I quoted a UK academic reference and, as far as I can remember, you agreed that this above is not the definition of public law. Can you please quote from where you pick this definition. Wikipedia say the following; "/*Ius publicum*/ is Latin <https://en.wikipedia.org/wiki/Latin> for public law <https://en.wikipedia.org/wiki/Public_law>. Public law regulated the relationships of the government to its citizens, including taxation, while /ius privatum <https://en.wikipedia.org/wiki/Ius_privatum>/ (private law <https://en.wikipedia.org/wiki/Private_law>), based upon property and contract, concerned relations between individuals. The public/private law dichotomy is a structural core of roman law and all modern western legal systems. Public law will only include some areas of private law close to the end of the Roman state. /Ius publicum/ was used also to describe obligatory legal regulations, such as /ius cogens <https://en.wikipedia.org/wiki/Ius_cogens>/, which is now a term used in public international law <https://en.wikipedia.org/wiki/Public_international_law> meaning basic rules which cannot (or should not) be broken, or contracted out of. Regulations that can be changed are called today /ius dispositivum/, and they are used when party shares something and are not in opposition." Which is consistent with all the entries I can find on the first page of google search. for instance http://definitions.uslegal.com/i/ius-publicum/ says "Ius publicum is the Latin for public law. It is to protect the interests of the Roman state. Ius publicum was also used to describe obligatory legal regulations, such as “ius cogens or jus cogens”, which is a term in public international law that refers to basic rules which cannot be broken." In any case, I am ready to work with the terms "laws where choice of law/ venue is available" and "where it is not available", which really are public and private laws respectively... However, despite many entreaties, it has not been made clear to me whether we are considering the category of such laws where choice is not available, they being obligatory, which are also called public laws. As for laws where choice is available, that indeed is so much less of a problem, and we can decide here how that choice should be exercised by ICANN..(However, again, I havent seen the framing of the "problem" here that we should be grappling with. Yes the issue area is laid out, but what is the big problem that requires our attention? I am not saying there isnt any, but let someone highliitght and we can begin working towards their resolution. On the other hand, where such problems have been highlighted, i.e. with regard to public law (no choice, obligatory) area, there seems to be a great resistance to moving forward to do something about them. It is quite a stalemate. parminder
Nigel
PS: For the sake of avoiding argument about wider meaning of 'public law', ICANN, of course, remains subject to the full panoply of state and Federal criminal law .. but that applies to everyone, all the time, anyway.
On 30/11/16 15:18, Arasteh wrote:
Dear All, I fully support issues raised by Parminder,Pedro and Avri to a) expand questions, to ask the potential difficulties that US jurisdiction continue to apply and adding a need for additional jurisdiction as well as to properly address the currently ICANN immunity to Public Law as exempted by US Immunity Acts More over any such questions to outside need to be approved by CCWG Regards Kavouss
Sent from my iPhone
On 28 Nov 2016, at 22:07, Pedro Ivo Ferraz da Silva <pedro.ivo@itamaraty.gov.br <mailto:pedro.ivo@itamaraty.gov.br>> wrote:
Dear subgroup colleagues,
I would like to support Parminder's rewritten question below. I believe it perfectly complies with the general requirement of a evidence based approach and it complements the two original questions since it introduces the element of future likelihood.
Our group should not only make recommendations based on problems/issues identified in the past, but also on perceived risks and threats that the current jurisdictional arrangement entails.
I also support Mike Rodenbaugh's suggestion to broaden the scope of the questions. I think we should welcome the input of any stakeholder that may have facts and genuine (well-founded) issues to present.
Finally, in order to eliminate the possibility of confusion, I would support dividing the document in two sessions: 1. Fact solicitation/ 2. Perceived risks
Regards,
Secretário Pedro Ivo Ferraz da Silva
Divisão da Sociedade da Informação (DI)
Ministério das Relações Exteriores - Brasil
T: + 55 61 2030-6609
Secretary Pedro Ivo Ferraz da Silva
Division of Information Society (DI)
Ministry of External Relations - Brazil
T: + 55 61 2030-6609
*De:*ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] *Em nome de *parminder *Enviada em:* domingo, 27 de novembro de 2016 04:34 *Para:* ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> *Assunto:* Re: [Ws2-jurisdiction] first draft of fact solicitation questions
On Saturday 26 November 2016 08:23 PM, avri doria wrote:
Hi,
I am among those who would like to see a question included along the
lines Parminder suggests. It should, however, be made by specific
reference to existing laws that could be used to interfere with ICANN's
ability to provide service to customers in other countries.
I think that Avri's proposal would be a good way to go about it, as long as we do not the circumscribe the inquiry too much. I would prefer a general question, plus a specific component, like
What do you think are the problems, if any, with continued jurisdiction of the US state over ICANN, as a US non-profit? Please justify your response with appropriate examples, analysis, etc. Especially, please indicate if there are existing and past instances that highlight such problems. Also, in terms of future likelihood, please mention specific institutions/ laws etc of the US state that could be used to interfere with ICANN's ability to provide global governance services to all people of the world, including in non US countries.
(Pl note that I have replaced the last part on services to customers in other countries to global gov services to all people.)
While I strongly support keeping the incorporation in CA in the US because the yet to tested accountability process depends on that,
I am happy to support a separate exercise seeking expert opinion on whether accountability process does or does not pertain to private law which can choose its own jurisdiction of adjudication (as most private contracts can), irrespective of whether ICANN is subject to US public laws or not, as having immunity from them, whether on basis of an international law incorporation of US state granted immunity under the mentioned immunity laws of the US. In this manner, to ascertain whether ICANN's new accountability mechanism can or cannot still be adjudicated upon by Californian law/ courts, on the basis of making the necessary provision in ICANN's bylaws.
I also support an effort to look for immunity from laws that affect ICANN ability to serve clients internationally - be they governments, companies or individuals. This immunity should be restricted to ICANN performance of its mission in relation to international entities and _not_ relate to contract law, labor law or local ordinances on garbage pickup.
Of course, that is exactly what is sought. And that is possible in my view to do with immunity under the US immunity provisions.
I do not think that this immunity can be gained in the WS2 timeframe, but I do believe that WS2 could initiate yet another CCWG effort to work on that, if the consensus of the group were to do so.
The purpose of the WS2 is to make recommendations and for ICANN to begin action on that basis. That can be done in a few months, if agreed to.. It is not about necessarily completing the process within WS2 time frame. If WS2 does not give this rec, and passes it on to WS3, the same problem will arise; if we would not have begun working on it, immunity cannot be gained within any WS# time period as well, which then becomes an infinite process .....
Let us be very clear; if we are working on immunity from US under relevant current provisions of US law, we can only recommend, as the wish of the world community. It if of course for the US state to act on it or not. But I would find it extremely strange for us not to arrive at a rec which in our view if what preserves the global public interest best, and is quite possible/ practical to do, just because we begin second guessing whether US state will actually do it, and if so, in what time frame. That I do not think if the job of this group or of CCWG as a whole.
But first we need more of the background information, the so-called facts. We have to remember that with NTIA oversight, the application of some laws may have been different than it might be going forward. We need to understand whether that is the case or not, and whether there are laws that could now be applied to ICANN's activities that were not applied before.
Yes I agree. This is a kind of investigation that is needed. Meanwhile, let me add, and I think this is what Avri is already alluding to, as now being not under a US gov contract/ oversight, ICANN in fact , in one way, may be more exposed to the full power of all laws and institutions of the US state than before. It is now just another private organisation.
parminder
avri
On 26-Nov-16 05:08, parminder wrote:
On Saturday 26 November 2016 01:55 PM, Mueller, Milton L wrote:
Sorry, Parminder, I see this as a request for opinions, not facts.
The whole point of this exercise is to gain specific factual cases
that show actual issues, not to provide people with an excuse to
complain about what the “think are the problems.” I would reject
adding such a question to the list
Milton, you probably mean, you are against adding such a question :).
I dont see you have any authority to reject anything any more than I
have to reject your original formulation.
Was not the community accountability mechanism instituted just on the
basis of "what people think are the problems"? I saw no efforts to
gather facts with surveys like
"1. Are you aware of any instance in which anyone's business,
privacy, or ability to use or purchase DNS-related services, has been
affected by absence of a community accountability mechanism ?
If any such known 'facts' exist I am unaware of them and will like to
know.
In case of the question of ICANN's jurisdiction of incorporation
analytical facts are rather more evident, as raised in the civil
society statement.
The process we employ can lead towards certain kind of outcomes rather
than others. And I see this particular process being aimed at
foreclosing the jurisdiction of incorporation question. This is fact
the "application of public laws question" because immunity from such
application can be obtained even without changing ICANN's place of
jurisdiction.
Meaning ICANN can stay incorporated as US non profit in California,
and it exempted from application form various public laws as per the
US immunity act that I cited. I also said that, as far as I can
understand, it is possible to keep the private disputes arising from
ICANN's organisational system, including those about enforcement of
community powers, to be subject to US/ Californian law, strictly only
for such dispute resolution as per ICANN bylaws. We need to hear from
this group why this is not possible or not preferred...
parminder
*From:*ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org>
[mailto:ws2-jurisdiction-bounces@icann.org] *On Behalf Of *parminder
*Sent:* Wednesday, November 23, 2016 11:54 PM
*To:* ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org>
*Subject:* Re: [Ws2-jurisdiction] first draft of fact solicitation
questions
I will like to add a general question to the below:
What do you think are the problems, if any, with continued
jurisdiction of the US state over ICANN, as a US non-profit? Please
justify your response with appropriate examples, analysis, etc.
Especially, if there are existing and past instances that highlight
such problems please indicate them.
parminder
On Wednesday 23 November 2016 09:50 PM, Mike Rodenbaugh wrote:
These seem well-stated, except perhaps they should not be looking
only for personal experience, but broaden the request to seek any
experience the responder is aware of? So I suggest something like:
1. Are you aware of any instance in which anyone's
business, privacy, or ability to use or purchase DNS-related
services, has been affected by ICANN's jurisdiction in any way?
If the answer is Yes, please describe specific cases or
incidents, including the date, the parties involved, and links to
any relevant documents.
2. Are you aware of any instance in which ICANN's
jurisdiction affected any dispute resolution process or
litigation related to domain names?
If the answer is Yes, please describe specific cases or
incidents, including the date, the parties involved, and links to
any relevant documents.
Mike Rodenbaugh
RODENBAUGH LAW
tel/fax: +1.415.738.8087
On Wed, Nov 23, 2016 at 6:47 AM, Mueller, Milton L
<milton@gatech.edu <mailto:milton@gatech.edu> <mailto:milton@gatech.edu> <mailto:milton@gatech.edu>> wrote:
CW and I have agreed on the following draft:
*Request for stakeholder input on jurisdiction issues*
The Jurisdiction subgroup of the CCWG Accountability is
asking for the community to provide factual input on the
following questions:
1. Has your business, your privacy or your ability to
use or purchase DNS-related services, been affected by
ICANN's jurisdiction in any way?
If the answer is Yes, please describe specific cases or
incidents, including the date, the parties involved, and
links to any relevant documents.
2. Has ICANN's jurisdiction affected any dispute
resolution process or litigation related to domain names you
have been involved in?
If the answer is Yes, please describe specific cases or
incidents, including the date, the parties involved, and
links to any relevant documents.
Dr. Milton L. Mueller
Professor, School of Public Policy
Georgia Institute of Technology
_______________________________________________
Ws2-jurisdiction mailing list
Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> <mailto: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> <mailto: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
--- This email has been checked for viruses by Avast antivirus software. https://www.avast.com/antivirus
_______________________________________________ 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
_______________________________________________ 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 with Milton. If we were to go in this direction we would also need to add something like "What do you think the problems would be, if any, of changing jurisdiction...". Neither question would be appropriate for what is intended to be an exercise in factual discovery rather than subjective opinion. Ed Morris Sent from my iPhone
On 26 Nov 2016, at 08:26, Mueller, Milton L <milton@gatech.edu> wrote:
Sorry, Parminder, I see this as a request for opinions, not facts. The whole point of this exercise is to gain specific factual cases that show actual issues, not to provide people with an excuse to complain about what the “think are the problems.” I would reject adding such a question to the list
From: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of parminder Sent: Wednesday, November 23, 2016 11:54 PM To: ws2-jurisdiction@icann.org Subject: Re: [Ws2-jurisdiction] first draft of fact solicitation questions
I will like to add a general question to the below:
What do you think are the problems, if any, with continued jurisdiction of the US state over ICANN, as a US non-profit? Please justify your response with appropriate examples, analysis, etc. Especially, if there are existing and past instances that highlight such problems please indicate them.
parminder
On Wednesday 23 November 2016 09:50 PM, Mike Rodenbaugh wrote: These seem well-stated, except perhaps they should not be looking only for personal experience, but broaden the request to seek any experience the responder is aware of? So I suggest something like:
1. Are you aware of any instance in which anyone's business, privacy, or ability to use or purchase DNS-related services, has been affected by ICANN's jurisdiction in any way?
If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents.
2. Are you aware of any instance in which ICANN's jurisdiction affected any dispute resolution process or litigation related to domain names?
If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents.
Mike Rodenbaugh RODENBAUGH LAW tel/fax: +1.415.738.8087 http://rodenbaugh.com
On Wed, Nov 23, 2016 at 6:47 AM, Mueller, Milton L <milton@gatech.edu> wrote: CW and I have agreed on the following draft:
Request for stakeholder input on jurisdiction issues
The Jurisdiction subgroup of the CCWG Accountability is asking for the community to provide factual input on the following questions:
1. Has your business, your privacy or your ability to use or purchase DNS-related services, been affected by ICANN's jurisdiction in any way?
If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents.
2. Has ICANN's jurisdiction affected any dispute resolution process or litigation related to domain names you have been involved in?
If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents.
Dr. Milton L. Mueller Professor, School of Public Policy Georgia Institute of Technology
_______________________________________________ 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
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
I agree with Milton and Edward. It is a research exercise … questions about an opinio juris may come later. Best, Erich 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: Edward Morris<mailto:egmorris1@toast.net> Gesendet: Samstag, 26. November 2016 15:39 An: Mueller, Milton L<mailto:milton@gatech.edu> Cc: ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org> Betreff: Re: [Ws2-jurisdiction] first draft of fact solicitation questions I agree with Milton. If we were to go in this direction we would also need to add something like "What do you think the problems would be, if any, of changing jurisdiction...". Neither question would be appropriate for what is intended to be an exercise in factual discovery rather than subjective opinion. Ed Morris Sent from my iPhone On 26 Nov 2016, at 08:26, Mueller, Milton L <milton@gatech.edu<mailto:milton@gatech.edu>> wrote: Sorry, Parminder, I see this as a request for opinions, not facts. The whole point of this exercise is to gain specific factual cases that show actual issues, not to provide people with an excuse to complain about what the “think are the problems.” I would reject adding such a question to the list From: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of parminder Sent: Wednesday, November 23, 2016 11:54 PM To: ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org> Subject: Re: [Ws2-jurisdiction] first draft of fact solicitation questions I will like to add a general question to the below: What do you think are the problems, if any, with continued jurisdiction of the US state over ICANN, as a US non-profit? Please justify your response with appropriate examples, analysis, etc. Especially, if there are existing and past instances that highlight such problems please indicate them. parminder On Wednesday 23 November 2016 09:50 PM, Mike Rodenbaugh wrote: These seem well-stated, except perhaps they should not be looking only for personal experience, but broaden the request to seek any experience the responder is aware of? So I suggest something like: 1. Are you aware of any instance in which anyone's business, privacy, or ability to use or purchase DNS-related services, has been affected by ICANN's jurisdiction in any way? If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents. 2. Are you aware of any instance in which ICANN's jurisdiction affected any dispute resolution process or litigation related to domain names? If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents. Mike Rodenbaugh RODENBAUGH LAW tel/fax: +1.415.738.8087 http://rodenbaugh.com On Wed, Nov 23, 2016 at 6:47 AM, Mueller, Milton L <milton@gatech.edu<mailto:milton@gatech.edu>> wrote: CW and I have agreed on the following draft: Request for stakeholder input on jurisdiction issues The Jurisdiction subgroup of the CCWG Accountability is asking for the community to provide factual input on the following questions: 1. Has your business, your privacy or your ability to use or purchase DNS-related services, been affected by ICANN's jurisdiction in any way? If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents. 2. Has ICANN's jurisdiction affected any dispute resolution process or litigation related to domain names you have been involved in? If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents. Dr. Milton L. Mueller Professor, School of Public Policy Georgia Institute of Technology _______________________________________________ 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 _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
On Saturday 26 November 2016 08:08 PM, Edward Morris wrote:
I agree with Milton.
If we were to go in this direction we would also need to add something like "What do you think the problems would be, if any, of changing jurisdiction...".
I agree that it would be a pertinent question.
Neither question would be appropriate for what is intended to be an exercise in factual discovery rather than subjective opinion.
What is intended is (yet) to be intended by this group. In any case, 'facts' is one of the most abused conceptual category. parminder
Ed Morris
Sent from my iPhone
On 26 Nov 2016, at 08:26, Mueller, Milton L <milton@gatech.edu <mailto:milton@gatech.edu>> wrote:
Sorry, Parminder, I see this as a request for opinions, not facts. The whole point of this exercise is to gain specific factual cases that show actual issues, not to provide people with an excuse to complain about what the “think are the problems.” I would reject adding such a question to the list
*From:*ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] *On Behalf Of *parminder *Sent:* Wednesday, November 23, 2016 11:54 PM *To:* ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> *Subject:* Re: [Ws2-jurisdiction] first draft of fact solicitation questions
I will like to add a general question to the below:
What do you think are the problems, if any, with continued jurisdiction of the US state over ICANN, as a US non-profit? Please justify your response with appropriate examples, analysis, etc. Especially, if there are existing and past instances that highlight such problems please indicate them.
parminder
On Wednesday 23 November 2016 09:50 PM, Mike Rodenbaugh wrote:
These seem well-stated, except perhaps they should not be looking only for personal experience, but broaden the request to seek any experience the responder is aware of? So I suggest something like:
1. Are you aware of any instance in which anyone's business, privacy, or ability to use or purchase DNS-related services, has been affected by ICANN's jurisdiction in any way?
If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents.
2. Are you aware of any instance in which ICANN's jurisdiction affected any dispute resolution process or litigation related to domain names?
If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents.
Mike Rodenbaugh
RODENBAUGH LAW
tel/fax: +1.415.738.8087
On Wed, Nov 23, 2016 at 6:47 AM, Mueller, Milton L <milton@gatech.edu <mailto:milton@gatech.edu>> wrote:
CW and I have agreed on the following draft:
*Request for stakeholder input on jurisdiction issues*
The Jurisdiction subgroup of the CCWG Accountability is asking for the community to provide factual input on the following questions:
1. Has your business, your privacy or your ability to use or purchase DNS-related services, been affected by ICANN's jurisdiction in any way?
If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents.
2. Has ICANN's jurisdiction affected any dispute resolution process or litigation related to domain names you have been involved in?
If the answer is Yes, please describe specific cases or incidents, including the date, the parties involved, and links to any relevant documents.
Dr. Milton L. Mueller
Professor, School of Public Policy
Georgia Institute of Technology
_______________________________________________ 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
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
participants (18)
-
Arasteh -
avri doria -
avri doria -
CW Mail -
Edward Morris -
Greg Shatan -
Jorge.Cancio＠bakom.admin.ch -
Kavouss Arasteh
-
matthew shears -
McAuley, David -
Mike Rodenbaugh -
Mueller, Milton L -
Nigel Roberts -
parminder -
Paul Rosenzweig -
Pedro Ivo Ferraz da Silva -
Schweighofer Erich -
Vinay Kesari