Anything is a possibility. It is possible that an undetected asteroid will strike Finlandia Hall during our meeting next week and vaporize us all. That does not mean it is a probability.

In general agreement with much of the rest of your statement.

Philip S. Corwin, Founding Principal

Virtualaw LLC

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"Luck is the residue of design" -- Branch Rickey

From: Guru Acharya [mailto:gurcharya@gmail.com]
Sent: Wednesday, June 22, 2016 4:11 PM
To: Phil Corwin
Cc: Mueller, Milton L; Roelof Meijer; accountability-cross-community@icann.org
Subject: Re: premature jurisdiction debates

I agree with Phil for the need to distinguish between the kinds of actions that constitute "interference by the US".

For example, criminal charges against a ICANN employee for embezzlement heard in a US court would not constitute interference by the US. However, interference in policy-making functions or compelling changes to the DNS root zone would indeed constitute interference by the US. There is need to create a proper definition of "interference by the US" in this regard.

However, I'm glad that Phil finally does agree that interference by the US is a possibility!

The reactions to such interference could be step wise or escalatory. In my opinion, changing jurisdictions should indeed be a possible response but only in the worst case or as the last step of the escalatory ladder in case preceding steps fail. Such a response must be preceded by other measures that do not require change in jurisdiction.

However, this escalatory ladder of options must publicly make it explicitly clear that change in jurisdiction is indeed a valid option in case the US continues to interfere!

On Thu, Jun 23, 2016 at 1:09 AM, Phil Corwin <psc@vlaw-dc.com> wrote:

So long as we have a common understanding of what would constitute “interference by the U.S. government” (of which there has been little to none since ICANN’s inception, with the possible exception of the delay in .xxx delegation to the root). I presume you are advocating deciding upon a process to address such an occurrence, rather than making a decision now about an alternate jurisdiction for a situation that may never arise, or occur decades from now.

I’ll start that discussion by stating that it would likely include interference in ICANN’s policymaking process (outside of advocacy within the GAC) or trying to block or compel a change in the root zone, through methods that are inconsistent with the Bylaws.

I don’t think it should include private litigation brought against ICANN and heard in state or federal court; or law enforcement actions, such as bringing an antitrust action if there is an allegation of illicit pricing decisions, or criminal charges against an ICANN employee for embezzlement, etc.

Philip S. Corwin, Founding Principal

Virtualaw LLC

1155 F Street, NW

Suite 1050

Washington, DC 20004

202-559-8597/Direct

202-559-8750/Fax

202-255-6172/Cell

Twitter: @VlawDC

"Luck is the residue of design" -- Branch Rickey

From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Mueller, Milton L
Sent: Wednesday, June 22, 2016 3:15 PM
To: Guru Acharya; Roelof Meijer
Cc: accountability-cross-community@icann.org
Subject: [CCWG-ACCT] premature jurisdiction debates

In the reflexive approach, you would ask "what are the institutional mechanisms or procedures to ensure that jurisdiction issue can be addressed in an adverse situation where the US jurisdiction is longer tenable, however rare it may it?" In the absolute rarest of rare cases that the US legislature or judiciary try to interfere with community decisions (the black swan scenario), how would ICANN ensure that this interference is contained/minimised? What are the institutional mechanisms or procedures for addressing the situation where the US (or any other) jurisdiction is no longer hospitable/ideal for the ICANN policymaking or IANA functions? These are the questions that we should be asking in the WS2 on jurisdiction.

MM: I think this is a good point. Even advocates of US jurisdiction or those who, like me, think there is just no better alternative and that the disruption and risks caused by a change are not worth the uncertain improvements, can easily agree that there should be procedures or plans for how to respond to interference by the U.S. government.

Dr. Milton L. Mueller

Professor, School of Public Policy

Georgia Institute of Technology

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