The jurisdiction issue is certainly worth exploring systematically in worksteam 2 or 3, but irrespective of the merits of contending positions, making it a big deal now would have killed the transition in the US Congress, full stop.  It’s going to be difficult enough as it is for Larry Strickling to sell something.  These are iterative consensual processes, it is very unrealistic to think that some sort of cosmic reordering must happen in a big bang or else it’s a failure.

Bill



> On Jun 25, 2015, at 4:52 PM, Milton L Mueller <[log in to unmask]> wrote:
> 
> Well now that the GAC has approved the CWG-IANA proposal, we see how cooperative it was. 
> Indeed, I was a bit disappointed, because the Brazilians were raising some great points about the need for stronger separation between ICANN and IANA (Carlos's round flat earth) but they did not make an issue of it. 
> 
> As for the jurisdiction issue, it is a situation where the critics had to shit or get off the pot, and they never did. For a shift of jurisdiction to be taken seriously as an option, someone would have had to propose - and insist on - another specific jurisdiction and another specific corporate law within it. This needed to happen about 6 months ago, before we hired California law. and no one ever did. An ITU guy made a stab at proposing Geneva nonprofit law, but it didn't get support last January from the GAC representative, and post-FIFA it doesn't look so wonderful anyway.
> 
>> -----Original Message-----
>> From: NCSG-Discuss [mailto:[log in to unmask]] On Behalf Of
>> Carlos Afonso
>> Sent: Wednesday, June 24, 2015 3:40 PM
>> To: [log in to unmask]
>> Subject: Re: [NCSG-Discuss] my view on the IANA transition
>> 
>> Right on, Flavio!
>> 
>> []s fraternos
>> 
>> --c.a.
>> 
>> On 24-06-15 13:58, Flávio Rech Wagner wrote:
>>> Hi Ed
>>> 
>>> I would like to make some comments following this sentence from your
>>> message:
>>> "Many of the governments who have been loudest in opposition to what
>>> the CWG and CCWG have been doing are amongst the most repressive and
>>> freedom stiffing in the world."
>>> 
>>> Of course we shall not consider the Brazilian government among these
>>> "most repressive governments", and I am sure you did not mean that.
>>> Since the beginning of this process, the Brazilian representatives in
>>> the GAC have been consistently raising the issue of jurisdiction and
>>> asking the community to take this opportunity to consider an approach
>>> to ICANN's internationalization that goes deeper than in the current
>>> proposals. This is clearly expressed in the recent comments the
>>> Brazilian government submitted to both the CWG and CCWG, according to
>>> established rules regarding public comments.
>>> 
>>> But this does not mean that the Brazilian government is in opposition
>>> to what the CWG and CCWG have been doing (as may be the case for
>> other
>>> governments). I fully agree with you that compromise is at the heart
>>> of the process, and we must look for the best possible solution given
>>> the available opportunity and timeline. I believe that the Brazilian
>>> government is also ready for compromises. As Fadi mentioned in the
>>> Board-GAC meeting this morning when addressing Brazil's concerns, this
>>> is a journey, not the end of the journey.
>>> 
>>> The Brazilian representatives in GAC cannot avoid the fact that other
>>> governments, even some repressive ones, also support this discussion
>>> on jurisdiction, although with completely different objectives, since
>>> the Brazilian government strongly supports the multistakeholder model
>>> for Internet Governance, which is truly implemented in the country,
>>> while other governments would like to see an intergovernmental-only
>> solution.
>>> 
>>> So, I would not like that we disregard claims to keep the discussion
>>> on jurisdiction alive, on the ground that repressive governments also
>>> want to discuss the issue or because there are members of the GAC that
>>> are not taking serioulsy their participation in the CCWG. These things
>>> are not related to the issue of jurisdiction itself.
>>> 
>>> For the record, although being a member of the Board of CGI.br, I'm
>>> not from the Brazilian government and of course I do not feel obliged
>>> to support all positions from the government. But I fully agree with
>>> Carlos suggestion that we should not lose this window of opportunity
>>> for looking for a higher degree of internationalization for ICANN,
>>> which is very much aligned with the position of the Brazilian
>>> government on this particular issue.
>>> 
>>> Kind regards
>>> 
>>> Flavio
>>> 
>>> 
>>> 
>>>> Hi everybody,
>>>> 
>>>> I'm in complete agreement with Matt's take on things but would like
>>>> to make an additional comment about the GAC and it's participation in
>>>> this process.
>>>> 
>>>> The GAC does not have a veto. They want to, they threaten one, they
>>>> do not and should not have one. The same holds true for the United
>>>> States Congress, the multinational corporate community or even the
>> N.T.I.A.
>>>> All are stakeholders, part of this cooperative, somewhat messy
>>>> governance model we call multi-stakeholder.
>>>> 
>>>> Many of the governments who have been loudest in opposition to what
>>>> the CWG and CCWG have been doing are amongst the most repressive
>> and
>>>> freedom stiffing in the world. IMHO they will oppose pretty much
>>>> anything the community comes up with short of handing responsibility
>>>> for the naming and numbers responsibilities to themselves through the
>>>> I.T.U. I'm sorry if I've begun to tune them out. I'm looking to work
>>>> with entities who approach these issues with open minds and in good
>>>> faith, not closed minds looking to sabotage our efforts. I should
>>>> note that the later involves far more than certain members of the GAC.
>>>> 
>>>> My broader concern involves the way the GAC is functioning regarding
>>>> the CWG and CCWG. We have had active participation by some GAC
>>>> members in the CCWG that has been quite constructive and welcome.
>>>> However, a few of their members have been inactive yet have been
>>>> charged with reporting  to the GAC on our proceedings. I am concerned
>> that one of
>>>> their two official presenters on things CCWG is a   GAC member of the
>>>> CCWG with an attendance record of 12%. I spoke with her this morning
>>>> and she does not understand the reference model she has been charged
>>>> with explaining to other GAC members. This is a concern.
>>>> 
>>>> Carlos, I agree with much of what you have written. I do not like PTI
>>>> yet recognise that it is the best we could get out of this mess we
>>>> call multi-stakeholderism. Compromise is at the heart of this process.
>>>> I will be voting to approve the CWG report on Council later today. In
>>>> terms of jurisdiction, I look forward to your active participation as
>>>> we discuss this and action upon your concerns in CCWG work stream 2.
>>>> I think there are a lot of options in this area that need to be
>>>> explored. Thanks so much for raising these important issues at this
>>>> critical stage of the transition process.
>>>> 
>>>> Kind Regards,
>>>> 
>>>> Ed
>>>> 
>>>> On Wed, Jun 24, 2015 at 2:58 PM, Matthew Shears <[log in to unmask]
>>>> <mailto:[log in to unmask]>> wrote:
>>>> 
>>>>    Hi Carlos
>>>> 
>>>>    Two thoughts in-line.
>>>> 
>>>>    On 6/24/2015 10:20 AM, Carlos Afonso wrote:
>>>> 
>>>>        Hi people,
>>>> 
>>>>        Just heard China, Indonesia, Brazil and Russia at the GAC
>>>>        meeting today (June 24). I have been trying to alert NCUC/NCSG
>>>>        that we should think very seriously about the way the
>>>>        oversight structure may come to be in the IANA transition. My
>>>>        concern is that we are losing a window of opportunity to
>>>>        mnimize the strong pressure from a relevant group of countries
>>>>        to change ICANN's jurisdiction.
>>>> 
>>>>        My view is that we should defend an oversight structure which
>>>>        is truly independent from ICANN, truly international in nature
>>>>        (even if it is constituted in the USA, although the ideal
>>>>        solution would be for it to be established outside of the USA,
>>>>        recongnizing there may be jurisdiction problems in this), and
>>>>        multistakeholder on equal footing.
>>>> 
>>>>    When we started the work of the CWG the first model discussions
>>>>    resulted in independent contracting and oversight through Contract
>>>>    Co and the MRT, the external model.  We fought long and hard to
>>>>    keep those but others within and outside the WG fought hard for
>>>>    the internal model.  We have a compromise that provides some
>>>>    separation BUT, from my perspective, we absolutely have to have
>>>>    the accountability enhancements and community empowerment in
>> place
>>>>    to have some checks and balances on ICANN which will effectively
>>>>    be overseer, contracting party and operator.
>>>> 
>>>> 
>>>>        ICANN remaining in the USA (which I think is unavoidable at
>>>>        least in the short term) but with an oversight structure which
>>>>        is clearly and indisputably independent from it will in my
>>>>        opinion contribute decisively to minimize this mantra from
>>>>        China, Russia and other countries.
>>>> 
>>>>        Please note that Brazil is not advocating for moving ICANN out
>>>>        of the USA (only saying that the jurisdiction theme should not
>>>>        be simply discarded), but insisting on the importance of a
>>>>        truly independent oversight with participation of governnents
>>>>        on equal footing in the multistakeholder structure.
>>>> 
>>>>        We seem to be happy with the current proposal which I like to
>>>>        compare to an impossible concept of a flat and round Earth.
>>>>        Are we really serious in agreeing to an oversight model in
>>>>        which the parent is overseen by a subsidiary, whatever the
>>>>        legal exercises and gimmicks are invented to make us swallow
>>>>        it as workable?
>>>> 
>>>>    The current model isn't quite that construct.  ICANN is not
>>>>    overseen by the affiliate PTI.  PTI is merely a legal vehicle to
>>>>    ensure some separation but it is under the oversight and control
>>>>    of ICANN.
>>>> 
>>>>    Best.
>>>> 
>>>> 
>>>>        FIFA (sorry to bring this to the dialogue) constituted a
>>>>        similar structure under respectable Swiss professor Mark Pieth
>>>>        - the IGC, as an internal structure funded by FIFA. We know
>>>>        well the results of the inefficacy of accountability
>>>>        mechanisms in the FIFA case.
>>>> 
>>>>        This is what I would like to have discussed in both the NCUC
>>>>        and NCSG meetings.
>>>> 
>>>>        fraternal regards
>>>> 
>>>>        --c.a.
>>>> 
>>>> 
>>>>    --     Matthew Shears
>>>>    Global Internet Policy and Human Rights
>>>>    Center for Democracy & Technology (CDT)
>>>>    + 44 (0)771 247 2987 <tel:%2B%2044%20%280%29771%20247%202987>
>>>> 
>>>> 
>>> 
>>>