Attendees: 

Sub-group Members:   Avri Doria, Becky Burr, Cheryl Langdon-Orr, Christopher Wilkinson, David McAuley, Farzaneh Badii, Finn Petersen Greg Shatan, Griffin Barnett, Herb Waye, Jorge Cancio, Kavouss Arasteh, Matthew Shears, Philip Corwin, Robin Gross, Seun Ojedeji, Steve DelBianco, Tatiana Tropina, Tom Dale, Wale Bakare   (20)

Observers/Guests:  Veni Markovski

Staff:  Anne-Rachel Inne, Bernie Turcotte, Brenda Brewer, Elizabeth Andrews, Karen Mulberry, Nigel Hickson, Patrick Dodson   (7)

Apologies:  Mathieu Weill

 ** If your name is missing from attendance or apology, please send note to acct-staff@icann.org **


Transcript

Recording

Agenda

  1. Welcome
  2. Questionnaire Update
    1. Method for processing responses
  3. Review and Finalize Questions for ICANN Legal
    1. https://docs.google.com/document/d/1HslgBieiTl2LNT1CXNct7ZS1Qi5lZy3r8Y42CVzfIP8/edit?usp=sharing
  4. Continue Work on Hypothetical #1
    1. https://docs.google.com/document/d/1W3U9-NnmO2Kk3d_qd4ApMcDKf5VcBMf93An6zg2VJlg/edit?usp=sharing
  5. Small Group Review of ICANN’s Past and Current Litigation
  6. Scope, Timeline and Work Product of Subgroup
  7. “Influence of ICANN’s Existing Jurisdiction” document, Section C
    1. https://docs.google.com/document/d/1_uxN8A5J3iaofnGlr5gYoFVKudgg_DuwDgIuyICPzbk/edit?usp=sharing
  8. AOB
  9. Adjourn

 

Notes (including relevant parts of chat):

15 Participants at start of call – 29 at halfway mark

1.  Welcome

Greg Shatan: no changes to SOIs. Agenda accepted.

2.  Questionnaire Update             

a.         Method for processing responses

Christopher Wilkinson - Would be useful to have staff collate and classify.

Greg Shatan - Would be useful to have staff do this.

3.  Scope, Timeline and Work Product of Subgroup

Greg Shatan - We are late - would be good to get back on track. Will try to put together a timeline for your consideration. As to work product we have a number of documents that are all half-finished such as the Hypothetical. I am also thinking that we could possibly talk iteratively about remedies to some of the issues - i.e. the question of immunity.

David McAuley - thank you for these comments. Part of our challenge is the unfortunate language on jurisdiction in Annex 12. We may need to discuss scope again. wrt hypotheticals I do not agree - it is about the future that is uncertain - best to consider past and documentd cases. wrt influence of existing jurisdcition is a task for us and we may need to look at it again.

Kavouss Arasteh - (unclear on which point we are on, request clarification). Do not agree we do not look at the future we need to look at the future so disagree with DM.

Jorge Cancio (GAC Switzerland): discussing scope will get us back into circles... let's wait for the feedback to the questionnaire

Tatiana Tropina: discussing the scope can wait till we collect the responses, however, I agree with David re future and predictions vs. actual analysis on the basis of what already happened

matthew shears: agree with David on looking at the past litigation rather than hypothetical

Tatiana Tropina: Matt, yes, this might also help solving the scope problem

David McAuley (RySG): Thank you Kavouss - interesting point which I will consider

Gerg Shatan - past litigation analysis are necessary. Hypotheticals that are probable vs possible are probably very useful also.

Jorge Cancio (GAC Switzerland): past litigation might help emerge a part of the problems of the past - but other issues may not have got to the stage of litigation and are equally relevant

Tatiana Tropina: The analysis of past litigation can turn hypothetical prediction into analysis of future risks but this is rather risk assessment than hypothetical, Greg.

David McAuley (RySG): I agree w/ Greg that we might compose probable hypotheticals - I just don't think we can well guess at court reactions to those

Tatiana Tropina: David, +1 - we can only say if this is a serious risk or not based on our "assessment"

matthew shears: past litigation should at least enable us to put more relevant parameters and better scoping possible futures

Jorge Cancio (GAC Switzerland): Let us also always remember that accountability is to the global community

Tatiana Tropina: Matt, yes, that's how I see it. Moreover, the future can be, er, beyond anyone's prediction. Jorge, I remember this 24/7 :-)

Seun Ojedeji - re Hypotheticals if they are probably they should be looked at

Greg Shatan: Hypotheticals need to be reasonable likely and reasonably clear.

Kavouss Arasteh: The methodology to address the jurisdiction is totally unclear

Steve DelBianco: the way we designed Stress Tests in WS1 was to propose plausible scenarios that would test the accountability structures, both existing and proposed

matthew shears: if there is time perhaps we wait on legal responses and litigation findings and then revisit the hypotheticals - may help in narrowing the hypotheticals

Kavouss Arasteh: It is difficult to carry out this mixed discussion.

Steve DelBianco: It wasn't necessary for the scenarios to be "reasonaly likely". Only that they were plausible.

4.  Review & Finalize Questions for ICANN Legal

Greg Shatan - (Review of draft questions). any comments on the current version of the draft?

Kavouss Arasteh - need examples for 2A.

Becky Burr: Amsterdam

Becky Burr: Black Knight, a contracted party, is incorporated in Ireland. Maybe should read US states and US jurisdictions other than California.  For example, DC is not a state

Jorge Cancio (GAC Switzerland): Puerto Rico

Becky Burr: Guam, Virgin Islands, etc.

David McAuley - Please ignore my latest first comment. Why at then end to ask about the choice of venue which seems to be beyond our scope

Greg Shatan - these are amongst the multiple layers of jurisdiction.

Kavouss Arasteh: what is meant by General Jurisdiction and Specific Jurisdiction pls give examples

avri doria: aren't venue and jurisdiction related.  intrinsically

David McAuley (RySG): I think they are related but not the same and wonder why we ask about venue

Jorge Cancio (GAC Switzerland): Venue is an element in juridiction analysis

avri doria: becasue it can have a jurisdictional effect?

Jorge Cancio (GAC Switzerland): it may - for some issues - e.g. for procedural rules

Kavouss Arasteh -  what is the difference general jurisdiction vs specific and what is proper venue.

Greg Shatan: Proper venue = case can be heard there. As to jurisdiction - general jurisdiction over the entire entity and all matters vs specific which only
applies to certain purposes. Any objections to sending this to the legal committee.

matthew shears: Great idea Greg - lets send it on its way asap

David McAuley (RySG): A US federal court could decide that an issue in front of it is under both US and French jurisdiction – and dismiss the case based on its
belief that venue is proper in France. That would not destroy US jurisdiction.

matthew shears: yes, lets send it on its ways asap

Jorge Cancio (GAC Switzerland): I feel the answer to these questions may be helpful - although we may need to send in follow-up questions.

Kavouss Arasteh - when will get an answer to this?

Greg Shatan - any objections (none). DECISION: will send to Legal Committee once cleaned up per our discussions today and will ask to have an
estimate time for a response from ICANN Legal.

5.  Continue Work on Hypothetical #1

Greg Shatan - someone is suing ICANN because they have been harmed - they win - the court issues an order telling ICANN to do or not something (delegate or not a TLD).

Steve DelBianco - when I read this it is plausible scenario. However this is not the stress test approach.Need to compare how things play out in our current jurisdiction scenario vs others.

Greg Shatan - Difficult in this case.

Steve DelBianco: True, Greg   We made our scenarios somewhat more specific, and asked about how ICANN could be held accountable for how the corporation responded to the scenario

Greg Shatan - (looking at comments in document).

Kavouss Arasteh - difficult document. why we need to go so far in this straw man?

Greg Shatan - Just showing the options and that a decision is rarely final - things can be appealed - we have left out the issue of settlement. this does not refer to a specific law.

Jorge Cancio (GAC Switzerland): the more you go into details, the more differences we would see.

Kavouss Arasteh: It is very difficult to digest this complex hypothesis

Greg Shatan - please continue to work on the document.

Jorge Cancio (GAC Switzerland): Steve's point made sense - if we want to stress test the current jurisdictions - but maybe at  a later stage when we get ICANN Legals answer and the answers to the questionnaire

6.  Small Group Review of ICANN’s Past and Current Litigation

Greg Shatan - we need to get this done please sign up and analyze a case.

7.  Adjourned

Decisions:

  • GS to forward questions for ICANN Legal to CCWG-Accountability Legal Committee after editing per discussion at this meeting.

Action Items:

  • GS to complete editing of questions for ICANN Legal and forward to CCWG-Accountability for review.

Documents Presented

Chat Transcript

 Brenda Brewer: (2/23/2017 12:27) Good day all and welcome to Jurisdiction Meeting #21 on 23 February 2017 at 19:00 UTC!

  Kavouss Arasteh: (12:37) This meeting is not indicated in the master Plan

  Brenda Brewer: (12:43) Thank you, Kavouss.  I will correct that asap!

  Brenda Brewer: (12:50) Kavouss, not sure what master plan you are referring to, but this meeting is on the Meetings page, here:  https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_x_FCOOAw&d=DwIFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=kbiQDH54980u4nTPfwdloDLY6-6F24x0ArAvhdeDvvc&m=OglnZS-8oPmIyywhy5glYGkPQ8-iC_tls6oX6aPpYB0&s=IyekPiEunRTupx4xB2UDHAVhvlo5FAxyGQpnFxA7x3Q&e=

  Brenda Brewer: (12:50) This meeting was just scheduled late last week.

  Bernard Turcotte Staff Support: (12:55) hello all

  Herb Waye Ombuds: (12:57) Hello everyone

  Tatiana Tropina: (12:59) Hi everyone!

  David McAuley (RySG): (12:59) 4154 here

  Brenda Brewer: (12:59) Thank you, David!

  Cheryl Langdon-Orr 2: (13:00) I am still in another ICANN Call... sorry  need to just be in AC for now

  David McAuley (RySG): (13:00) YW Brenda, 4154 is present and accounted for

  Brenda Brewer: (13:00) Thank you, Cheryl.

  Greg Shatan: (13:00) We'll get started in just a minute or two.

  Kavouss Arasteh: (13:03) PLS SPEAK SLOWLY

  David McAuley (RySG): (13:03) Greg, can you see adobe

  Kavouss Arasteh: (13:03) gREG PLS PLS SPEAK SLOWLY

  Steve DelBianco: (13:03) 6206 is Steve DelBIanco

  avri doria: (13:05) do not

  Wale Bakare: (13:05) Hi all. Good afternoon/evening

  Farzaneh Badii: (13:05) Avri's mic is on

  avri doria: (13:06) sorry that is a cool way to repimand me for open mike. apologies. glad i wasn't saying anything.

  David McAuley (RySG): (13:07) I like the idea Bernie and would support that

  David McAuley (RySG): (13:07) CW - on mute?

  matthew shears: (13:07) agree

  Brenda Brewer: (13:07) Phone number ending with 7708, please identify your name.  Thank you!

  Jorge Cancio (GAC Switzerland): (13:08) Hi, sorry for connecting late...

  Philip Corwin: (13:09) Good day all. Apologies for the slightly late arrival.

  Kavouss Arasteh: (13:09) which agenda item are we discussing

  Philip Corwin: (13:09) I am x5316

  Brenda Brewer: (13:09) Thank you, Philip!

  Becky Burr: (13:09) hello

  Kavouss Arasteh: (13:11) Iam disconnected

  Brenda Brewer: (13:11) Calling you back, Kavouss.

  David McAuley (RySG): (13:12) +1 Greg on enhancing acctblty

  Cheryl Langdon-Orr 2: (13:14) shuddering

  Steve DelBianco: (13:14) I get stressed even hearing the words

  avri doria: (13:14) for better or for worse, they are part of our toolkit.

  avri doria: (13:15) and you guys are permanently associated with them.

  Cheryl Langdon-Orr 2: (13:16) yup but I am qualified in Stress Physiology 😎

  Jorge Cancio (GAC Switzerland): (13:18) discussing scope will get us back into circles... let's wait for the feedback to the questionnaire

  Tatiana Tropina: (13:19) discussing the scope can wait till we colelct the responses, however, I agree with David re future and predictions vs. actual analysis on the basis of what already happened

  matthew shears: (13:19) agree with David on looking at the past litigation rather than hypothetical

  Tatiana Tropina: (13:20) Matt, yes, this might also help solving the scope problem

  David McAuley (RySG): (13:21) Thank you Kavouss - interesting point which I will consider

  Jorge Cancio (GAC Switzerland): (13:21) past litigation might help emerge a part of the problems of the past - but other issues may not have got to the stage of litigation and are equally relevant

  Tatiana Tropina: (13:22) The analysis of past litigation can turn hypethetical prediction into analysis of future risks

  Tatiana Tropina: (13:22) but this is rather risk assessment than hypothetical, Greg.

  David McAuley (RySG): (13:23) I agree w/ Greg that we might compose probable hypotheticals - I just don't think we can well guess at court reactions to those

  Tatiana Tropina: (13:23) David, +1 - we can only say if this is a serious risk or not based on our "assessment"

  matthew shears: (13:23) past litigatin should at least enable us to put more relevant parameters and better scoping  possible futures

  Jorge Cancio (GAC Switzerland): (13:23) Let us also always remember that accountability is to the global community

  Tatiana Tropina: (13:24) Matt, yes, that's how I see it. Moreover, the future can be, er, beyond anyone's prediction

  Tatiana Tropina: (13:24) Jorge, I remember this 24/7 :-)

  Kavouss Arasteh: (13:25) The methodology to adress the jurisdiction is totally unclear

  Steve DelBianco: (13:26) the way we designed Stress Tests in WS1 was to propose plausible scenarios that would test the accountability structures, both existing and proposed

  matthew shears: (13:26) if there is time perhaps we wait on legal responses and litigation findings and then revisit the hypotheticals - may help in narrowing the hypotheticals

  Kavouss Arasteh: (13:26) It is difficult to carry ouit this mixed discussion.

  Steve DelBianco: (13:26) It wasn't necessary for the scenarios to be "reasonaly likely". Only that they were plausible.

  avri doria: (13:27) did we lose someone again?

  Kavouss Arasteh: (13:27) I AM DISCONNECTED FOR THE SECOND TIME

  Brenda Brewer: (13:27) Calling you back Kavouss.

  avri doria: (13:27) that explains the beeping.

  Kavouss Arasteh: (13:27) What is the problem pls

  Kavouss Arasteh: (13:28) I am disconned

  Herb Waye Ombuds: (13:29) I have been disconnected several times too... must be a bad day for Adobe

  avri doria: (13:30) are there good deays for Adobe?

  Tatiana Tropina: (13:30) Avri, weekends

  Jorge Cancio (GAC Switzerland): (13:30) agree with Kavouss that for non-native speakers it is difficult to follow

  Bernard Turcotte Staff Support: (13:31) Time Check - 30 minutes left in call

  Becky Burr: (13:33) Amsterdam

  Becky Burr: (13:34) Black Knight, a contracted party, is incorporated in Ireland.

  Becky Burr: (13:35) Maybe should read US states and US jurisdictions other than California.  For example, DC is not a state

  Jorge Cancio (GAC Switzerland): (13:35) Puerto Rico

  Jorge Cancio (GAC Switzerland): (13:35) and some islands, right?

  Becky Burr: (13:36) Guam, Virgin Islands, etc.

  Kavouss Arasteh: (13:37) what is meant by General Jurisdiction and Specific Jurisdiction pls give examples

  avri doria: (13:37) aren't venue and jurisdiction related.  intrically.

  avri doria: (13:37) intrinsically

  David McAuley (RySG): (13:38) I think they are related but not the same and wonder why we ask about venue

  Jorge Cancio (GAC Switzerland): (13:39) Venue is an element in juridiction analysis

  avri doria: (13:39) becasue it can have a jurisdictional effect?

  Jorge Cancio (GAC Switzerland): (13:39) it may - for some issues - e.g. for procedural rules

  matthew shears: (13:42) Great idea Greg - lets send it on its way asap

  David McAuley (RySG): (13:42) A US federal court could decide that an issue in front of it is under both US and French jurisdiction – and dismiss the case based on its belief that venue is proper in France. That would not destroy US jurisdiction.

  matthew shears: (13:42) yes, lets send it on its ways asap

  Jorge Cancio (GAC Switzerland): (13:42) I feel the answer to these questions may be helpful - although we may need to send in follow-up questions

  Kavouss Arasteh: (13:44) I AM DISCONNETED FOR THE THIRD TIME

  Kavouss Arasteh: (13:44) Iam disconnected for the third time

  Bernard Turcotte Staff Support: (13:44) Kavouss we will be moving to the follwoing item on the agenda: 4.  Continue Work on Hypothetical #1

  Brenda Brewer: (13:44) we are calling you back ASAP, Kavouss

  Jorge Cancio (GAC Switzerland): (13:45) Dear Greg: could you please sum up in plain English the meaning of hypothetical 1?

  Bernard Turcotte Staff Support: (13:46) and sent to the Jurisdiction list

  Herb Waye Ombuds: (13:46) I too am back, I had to erase my computer history for last hour so adobe would let me back in... sigh

  David McAuley (RySG): (13:46) ok thanks

  Jorge Cancio (GAC Switzerland): (13:48) Thx Greg!

  Bernard Turcotte Staff Support: (13:50) Time check: 10 minutes leftt in the call

  Jorge Cancio (GAC Switzerland): (13:50) btw "alternate facts" -sound a bit like "alternative facts..."

  Steve DelBianco: (13:51) True, Greg   We made our scenarios somewhat more specific, and asked about how ICANN could be held accountable for how the corporation responded to the scenario

  Steve DelBianco: (13:53) with apologies, I have to drop for another call

  Bernard Turcotte Staff Support: (13:56) 4 minutes left in the call

  David McAuley (RySG): (13:56) I have to drop at top of hour

  Jorge Cancio (GAC Switzerland): (13:57) the more you go into details, the more differences we would see

  Kavouss Arasteh: (13:58) It is very difficult to digest this complex hypothesias

  David McAuley (RySG): (13:59) Will do. Thanks Greg, staff, and all, I must go now

  Bernard Turcotte Staff Support: (14:00) top of the hour

  Jorge Cancio (GAC Switzerland): (14:00) Steve's point made sense - if we want to stress test the current jurisdictions - but maybe at  a later stage when we get ICANN Legals answer and the answers to the questionnaire

  Herb Waye Ombuds: (14:00) Gotta run... have a nice weekend everyone

  Kavouss Arasteh: (14:00) Any how we need more time to digesr that

  Kavouss Arasteh: (14:01) digest

  Bernard Turcotte Staff Support: (14:01) bye all

  Farzaneh Badii: (14:01) bye

  Jorge Cancio (GAC Switzerland): (14:01) thanks Greg and everyone!

  Cheryl Langdon-Orr (CLO): (14:01) bye...thanks all

  Robin Gross [GNSO NCSG]: (14:01) bye

  Nigel Hickson: (14:01) Goodbye

  Tatiana Tropina: (14:01) bye all!


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