On Friday 29 May 2015 01:08 AM, Steve DelBianco wrote:
....SNIP....

6. The Board refuses to act, citing, again, that it believes the action is outside of ICANN’s mission
7. After the necessary community votes etc., the community now heads to court. In the State of California.
As I understand it, the role of the court in this scenario would be to determine whether the Board is acting in a way that is serving the public interest within ICANN’s mission. It would not be to decide whether, on balance, the community was ‘more right’ than the Board. 

Right now as a global multi-stakeholder body we decide the nuances of the meaning of ICANN’s mission and the way ICANN acts under that mission by using the multi-stakeholder process and by compromise and nuanced decision making.

If we agree to the CCWG recommendations we will not be handing ultimate authority to the members but rather we will be handing ultimate authority to a state based American court and allowing it to make binding and precedent setting decisions about the interpretation of ICANN’s mission. 

Does the ICANN community really want the specific nuances of ICANN’s mission to be held up to scrutiny and have decisions made, at the highest level, through such a mechanism? Whilst that may give comfort to, for example, US members of the intellectual property community or US listed registries, it gives me no comfort whatsoever.

Simply out of curiosity, since there seems to be deep concern about the rights of the US courts to be able to determine whether a ICANN decision serves public interest or not:

Is it not the fact that whether the rules of ICANN make a provision for the 'community' ( a misnomer, we mean SOACs system, but whatever) to take matters to the courts or not, there are a thousand ways that US citizens (and perhaps sometimes even non citizens) can directly take an ICANN decision to US courts to meet the tests of pubic interest as determined by US laws and the constitution. What about that? If this concern of 'US court/ law's interference' is real, one has to find ways to confront this undeniable reality of the automatic US courts' jurisdiction over all acts of ICANN, whatever ICANN rules and bylaws may say or not. I do not understand why the group has consistently refused to look at this elephant in the room, while investing so thoroughly in thrashing out the minute details without resolving clear higher level issues.

One need not even provide a scenario, put let me try it - entirely hypothetical at this stage, but extreme plausible. Sun Pharmaceuticals is an Indian generic drugs company, one of the world's largest, and providing drugs to most developing countries, at a fraction of the prices that patented drug equivalents are available for . There is a lot of literature on how Indian generic drug industry has helped fight and stabilise the AIDS calamity in Africa, and also many with regard to other diseases all over the world. Meanwhile, US pharma industry with the backing of the US government has employed all possible means including those that are suspect from an international law point of view to thwart and weaken the Indian generic drugs industry for reasons which are obvious -- including getting seized in international waters and neutral protected global shipping lanes supplies being shipped between two developing countries in both of which the transaction is perfectly legal (There is the famous case of supplies being exported from India to Brazil being seized off Netherlands's coast on US gov's behest.)  ... Just to give an idea of how 'tense' things are in this area.

Now, extending the hypothetical, lets say that Sun Pharma gets for itself a gtld .Sunpharma (which btw if they ask me I'd advice them not to bec of obvious dangers as clear from the following).. and meanwhile extends its global business to online platforms, which is kind of the normal direction that everything would go.  .Sunpharma then becomes or denotes the digital space where the company does much of its global business, including management of company's global affairs and so on.

Meanwhile, one or the other flare up happens, as routinely does, and the US pharma industry cries foul over certain global commerce activities of Sun Pharma.... We are in 2025 and everything is so digitalised and networked and so on, that the 'Sunpharma online space has become basic to SunPharma's international operations (which it has a right to do  - meaning get to own and leverage a global online space under its own name and a trade name name derived gtld). US pharma approaches US courts and seeks seizing of .Sunpharma as this asset is made available and controlled from within the US jurisdiction; and the court agrees and accordingly directs ICANN.... The global DNS system practically unravels, at least its global legitimacy does... 

We know that US courts have many times been approached to seize domain names that are owned by outside groups and largely work outside the US, and on many different kinds of grounds as well. This is common knowledge and I will not try to begin providing examples.  And this right of such seizures or to otherwise being able to judge the public interest nature of ICANN's work lies not only with the US courts but also some executive agencies like the Office of Foreign Assets Control, and I am sure there must be many more. I had earlier asked this particular stress test to be applied but for no clear reasons it never is. If we can cherry pick our stress tests, they really are not stress tests, whatever other purpose they might serve.

There is simply no solution to the problem of letting US courts and US's  empowered executive agencies routinely judge and enforce their will wrt the public interest impact of ICANN's global governance activities than to incorporate ICANN under international law and get corresponding immunity from US domestic law. I repeat, there is simply no other way. Period.

Therefore if we indeed are worried about the role and authority of US courts vis a vis ICANN's global governance activities, lets be consistent. I have held back commenting here, because I see that the two key framing issues of accountability - accountability to which community/ public, and the issue of jurisdiction - have simply been sidestepped, and in default there is no meaning to thrashing out minute details.

However, when I read about concerns on how depending on whether something is written in ICANN rules or not US courts will exercise power over it, I could not stop myself from once again pointing to the elephant in the room  which is the automatic power of US courts over anything ICAAN whichever way you write the latter's rule book. It does appear funny for people to be working out the minutiae of the quality of waterproofing of the window glass of the ICANN ship when there is a unattended big hole in the hull, which tickled me enough to write this note...

Hopefully it may be of some use... parminder 



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